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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wyatt v. Estate of Wyatt (3/7/2003) sp-5671

Wyatt v. Estate of Wyatt (3/7/2003) sp-5671

     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
                                

RONALD F. WYATT,              )
                              )    Supreme Court No. S-9087
             Appellant,            )
                              )    Superior Court No. 1KE-92-1070
CI
     v.                       )
                              )    O P I N I O N
ESTATE OF DIANE E. WYATT,     )
                              )    [No. 5671 - March 7, 2003]
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Larry C. Zervos, Judge.

          Appearances:   Ronald  F.  Wyatt,   pro   se,
          Seward.   Donna  C. Willard, Law  Offices  of
          Donna C. Willard, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

           Having appealed his first-degree murder conviction for

the  death  of  his wife, Ronald Wyatt obtained  a  stay  of  the

wrongful  death  civil  lawsuit his late  wife's  estate  brought

against  him.   In exchange, he agreed with her  estate  in  open

court that ownership of disputed real and personal property would

vest  in  the  estate  if his criminal appeal  was  unsuccessful.

Wyatt  argues  that the agreement did not encompass his  separate

property.  We hold that it did, and therefore affirm the superior

court's  interpretation of the agreement and its refusal  to  let

him use the property to hire defense counsel in the civil action.

We also affirm as to all other issues he raises.

II.  FACTS AND PROCEEDINGS

          Ronald Wyatt was charged in October 1992 with murdering

his  wife  of almost eight years, Diane Wyatt.1  A jury convicted

him  of  first-degree  murder in 1993 and  the  Alaska  Court  of

Appeals  affirmed  his conviction in 1997.  We  affirmed  in  May

1999.2

           Diane Wyatt's sister, Susan Vik, was appointed special

administrator  of Diane's estate in October 1992 to  collect  and

manage the estate's assets.  On behalf of the estate, Vik filed a

civil  wrongful  death suit against Wyatt in October  1992.   The

estate  sought and obtained a restraining order against Wyatt  to

ensure  that  he would not disturb assets that the  estate  could

potentially claim.  Wyatt stipulated that his bank accounts would

be frozen pending the criminal case.  He could use those accounts

only  for  living  expenses and defense counsel in  the  criminal

prosecution.

           In  August  1994 the estate moved for partial  summary

judgment  to establish Wyatt's liability for Diane's  death.   In

September  1994  the  estate  again  moved  for  partial  summary

judgment  and  argued that Wyatt had no constitutional  right  to

counsel  in the civil action.  This motion responded to a  letter

Wyatt  wrote  the superior court requesting more time  to  retain

substitute  defense counsel in the civil case after his  criminal

lawyer  withdrew from Wyatt's civil case in May 1994,  and  after

the  court-imposed deadline for pro bono services for  the  civil

action  had  expired.   The court granted  the  estate's  summary

judgment motion on the issue of Wyatt's right to counsel.   Wyatt

moved for reconsideration, arguing that proceeding with the civil

trial  would  adversely affect his Fifth Amendment right  against

self-incrimination in his criminal appeal.  In November 1994  the

superior  court  granted the estate's other  motion  for  summary

judgment  on  the issue of Wyatt's liability for  Diane's  death,

based  on  the preclusive effect of Wyatt's criminal  conviction.

In December 1994 Wyatt moved for reconsideration.

           During  a  February 1995 hearing in  the  civil  case,

Wyatt,  the estate, and the superior court discussed staying  the

wrongful  death  trial  pending  the  criminal  appeal.    Wyatt,

representing  himself,  asked  the  court  to  stay   the   civil

proceedings until his criminal appeal was resolved.  Counsel  for

the  estate  suggested transferring all of the  property  to  the

estate  pending  the appeal.  If the appeal were successful,  the

property  would  be  disgorged  and  its  status  could  then  be

litigated.  The parties and the court considered this proposal at

some  length.   The court explained that if Wyatt's  appeal  were

unsuccessful and his conviction was affirmed, the stay  would  be

lifted  and  the  estate "could then transfer  that  property  to

anybody,  to  use it, [or] do whatever they wanted to  with  it."

Wyatt  answered,  "If the appeal is not successful."   The  court

stated,  "Exactly."  It then confirmed that  if  the  appeal  was

successful, the property would return to its pre-agreement  legal

status.   The  court asked Wyatt if "everything"  the  court  had

explained was "clear," and Wyatt answered, "yes."  Asked  by  the

court  if he had "any questions," Wyatt answered, "no."   Wyatt's

other comments made it clear he understood at the hearing that he

was entering into an agreement which would moot any dispute about

ownership  of the property if his appeal were unsuccessful.   For

example, he stated:

                Well,  what the - what we talked  about

          originally  about the property being  put  in

          the  -  just put on hold, you might say,  and

          then  my appeal is successful, I'm back where

          I was. If it's not, I'm out of luck.

The  court  made  it clear that if Wyatt agreed  to  these  terms

orally,  "it  becomes binding tonight," and that if  Wyatt  later

refused  to  sign papers transferring property, the  court  would

instruct the clerk to sign them.

           The  agreement was then reduced to writing, but  Wyatt

objected  to  several terms.  The superior court determined  that

the  stay order reflected the oral agreement and entered the stay

order  in  May 1995.  When Wyatt refused to sign the stay  order,

the  superior  court  instructed the clerk  to  sign  on  Wyatt's

behalf.   Wyatt filed a motion in July 1995 to stay the  superior

court's order.  His motion was ultimately denied.

           After  the court of appeals affirmed Wyatt's  criminal

conviction  in  May  1997, the transfer of property  began.   The

superior  court in the civil lawsuit ordered in April  1998  that

funds  be  transferred  to the estate.   Wyatt  objected  to  the

transfer and requested funds from the transferred property so  he

could  hire  counsel to defend himself in the  civil  case.   The

superior court rejected Wyatt's motion.  Wyatt filed a motion for

reconsideration in September 1998.  He claimed again that some of

the  transferred  property belonged to him.  The  superior  court

again  rejected Wyatt's claims.  The superior court  stated  that

the  settlement agreement governed the transfer of funds  to  the

estate.   It also stated that "[s]ince [the civil] case has  been

settled  long ago, there is no pending complaint that  Mr.  Wyatt

can assert cross-claims or counterclaims against."

          Wyatt appeals.

III. DISCUSSION

     A.   Standard of Review

           In determining the validity and scope of the agreement

between Wyatt and the estate, "[t]he intent of the parties is  to

be  determined by the surrounding facts and circumstances of each

case, and is reviewed under the clearly erroneous standard."3  We

review  the  superior court's enforcement of  the  agreement  for

abuse of discretion.4  We review Wyatt's constitutional issues de

novo.5   We review the superior court's award of attorney's  fees

and costs for abuse of discretion.6

          B.    Wyatt's  Oral Agreement with the  Estate  at  the

          February  1995  Hearing Encompassed  All  the  Disputed

Property.

           Wyatt makes two principal arguments regarding the oral

agreement reached at the February 1995 hearing:  first, that  the

oral  agreement  did  not cover all of the property  Wyatt  owned

individually or jointly with his late wife; and second, that  the

superior  court  erred  in  finding that  the  written  agreement

reflected the oral agreement.  We conclude that the court did not

err.7

                    1.   The February 1995 oral agreement covered

               all  property  individually or  jointly  owned  by

               Ronald Wyatt.

           Wyatt orally offered to give the estate ownership  of,

or  legal title to, Wyatt's "various assets, personal, real,  and

cash" in exchange for a stay of the civil trial.

           Accepting  the  offer,  the  estate  agreed  to  delay

prosecuting  its  civil claims against Wyatt until  his  criminal

appeal concluded.  It also agreed that if Wyatt's criminal appeal

was  successful, the estate would disgorge Wyatt's property,  and

the parties would litigate at that point.

           We have held that "[t]he formation of a valid contract

requires  an  offer encompassing all essential terms, unequivocal

acceptance  by the offeree, consideration, and an  intent  to  be

bound."8  A settlement agreement satisfying these elements  forms

a  binding  contract between the settling parties.9 The bilateral

exchange  of promises between Wyatt and the estate was sufficient

consideration to form a contract.10

           We  will hold an agreement unenforceable if its  terms

are  not  reasonably certain.11  But the superior court carefully

explained  to Wyatt the relevant terms of the proposed agreement,

and  emphasized  the  importance of Wyatt's  understanding.   Any

possible  doubt about the agreement's scope was removed when  the

superior  court  explained  that the  agreement  covered  all  of

Wyatt's property:

          The  agreement  is that all this  property[:]
          .  . . [the] real estate here, [the] personal
          property  here, [the] negotiable instruments,
          and  [the] cash.  All that property would  be
          transferred to the estate, in the name of the
          estate.
          
There  is  no reasonable doubt about what property the  agreement

covered.  Moreover, the record makes it clear that Wyatt actually

understood  that the agreement covered even separate property  he

owned  individually.   Wyatt's  recognition  that  the  agreement

covered  his personal savings bonds illustrated his understanding

of the agreement's scope.  The superior court did not clearly err

in determining that the agreement covered separate property Wyatt

owned individually.

                     2.    The  superior court  did  not  err  in
               finding  that the written agreement reflected  the
               parties' oral agreement.
               
           Wyatt  argues that the superior court's May 1995  stay

order  did  not  conform  to  the  parties'  February  1995  oral

agreement.12  Wyatt's primary objection to the written stay order

is  that it did not contain a complete and accurate inventory  of

Wyatt's joint and separate ("personal") property, including "U.S.

Bonds and over $200,000" in assets.  Wyatt argues that the estate

materially misrepresented the oral agreement when it drafted  the

May  1995 written stay order for approval by the superior  court.

The  estate responds by recounting Wyatt's acknowledgment in open

court  that  the oral agreement covered Wyatt's interest  in  the

couple's  joint property and his separate property.   The  estate

argues  that  Wyatt's 1995 objections to the terms  of  the  stay

order  -  including the estate's inventory of Wyatt's property  -

were  irrelevant because all of the property was covered  in  the

agreement.   Given  the  scope of the oral  agreement,  see  Part

III.B.1, we agree with the estate.

          Moreover, we do not have to consider Wyatt's claim that

the  estate prepared an incomplete inventory list; regardless  of

the  accuracy  of  the list, all of Wyatt's property  was  to  be

transferred to the estate per the February 1995 agreement.13

           Wyatt  next  argues that the February  1995  agreement

contemplated that no transfer would take place until all  appeals

were  completed,  not  just his appeal to  the  Alaska  Court  of

Appeals.   The estate counters that Wyatt did not object  to  the

provision in the stay order explicitly referring only to  Wyatt's

appeal to the court of appeals.  The order, for example, referred

to  the  agreement to stay "until the decision of  the  Court  of

Appeals  of Wyatt's appeal in docket [N]o. A-5291."  It  referred

to the estate's agreement not to transfer property until ten days

"following affirmance of Wyatt's murder conviction by the  Alaska

Court  of  Appeals in docket [N]o. A-5291."  It also referred  to

the  estate's  obligation to secure the property for  the  period

ending  ten  days  "immediately following affirmance  of  Wyatt's

[murder]  conviction  by the Alaska Court of  Appeals  in  docket

[N]o.   A-5291."   The  estate  also  notes  that  the  agreement

contained  a  provision by which Wyatt agreed that  the  "Impound

Period  shall not be otherwise extended by subsequent  appeal  of

Wyatt's  conviction to a higher federal or state appellate  court

following  the  decision of the Alaska Court of  Appeals  on  the

matter  now pending before that court described as docket No.  A-

5291."   It  referred  also  to  "the  Alaska  Court  of  Appeals

resolution of Wyatt's appeal in A-5291."

           As  a  result,  the estate asserts that  there  is  no

indication  in  the record that the superior court  suggested  to

Wyatt  that  "appeal" referred to any proceeding other  than  his

then-pending direct appeal in the court of appeals.14  Wyatt's own

statements  during the February 1995 hearing refer  only  to  one

appeal.   His current interpretation of "appeal" is at odds  with

the  plain  language of the oral agreement and the  written  stay

order.

           Regardless, we do not have to decide whether the court

erred in interpreting "appeal" to mean only Wyatt's direct appeal

because   we  conclude  that  Wyatt  was  not  harmed   by   this

interpretation.  Per the February 1995 agreement, the estate held

all of Wyatt's assets in its name in exchange for entry of a stay

of  the civil proceedings.  Even if funds were transferred to the

estate before the final resolution of his claims on appeal, Wyatt

did  not have access to any of his assets after the court entered

the  stay  order and therefore suffered no harm.15  The  superior

court also did not err when it stated in its September 1998 order

that  "[t]his  agreement became a final court order  by  its  own

terms,  10  days  after the Court of Appeals upheld  Mr.  Wyatt's

conviction."

          C.     Wyatt's  Remaining  Arguments  Do  Not   Require

          Reversal.

                     1.   Wyatt was not wrongfully denied counsel

               in the civil proceedings.

           Wyatt  argues that he was wrongfully denied access  to

funds,  including  the savings bonds he alleged  to  be  separate

property,  and  that this denial violated his due process  rights

under both the United States and Alaska Constitutions.  But Wyatt

voluntarily  entered into the February 1995  agreement  with  the

estate  to transfer all property, joint or separate, to which  he

had any claim.  This disposed of the issue.

           Wyatt further argues that if the superior court  would

not  grant  Wyatt access to his funds, it should  have  appointed

counsel  to represent Wyatt in the civil suit.  But the  superior

court stated in a November 1994 order that Wyatt "[had] not moved

this  court for an appointment of counsel.  [And] [i]n any event,

the  court  is without authority to appoint Mr. Wyatt counsel  at

public   expense."   The  superior  court  correctly  relied   on

precedent  limiting appointment of counsel at  public  expense.16

Wyatt's  situation was not one allowing such an appointment,  and

in  any event, Wyatt did not pursue the issue beyond the February

1995 agreement.

                    2.   It was not error to deny Wyatt a stay in

               the  civil  proceedings  until  he  exhausted  all

               appeals of his criminal conviction.

          Wyatt argues that the superior court's decision denying

Wyatt's  motion  for  a  stay of the civil  proceedings  violated

Wyatt's   "Fifth  Amendment  right  against  self-incrimination."

Wyatt  states that the superior court's refusal to grant  a  stay

prompted Wyatt to enter "into an unfavorable agreement [with] the

Estate  to  stay  [the] proceedings."  The estate  responds  that

because the case settled, the superior court was not required  to

decide the issue.

           The  record contains no decision by the superior court

denying Wyatt a stay and Wyatt points to none in his brief.   The

superior  court  requested and received extensive  briefing  from

both parties on Wyatt's previous stay motion, but it did not deny

Wyatt  a  stay  before  it conducted the February  1995  hearing.

After  Wyatt made his stay proposal at that hearing, the  parties

agreed to terms staying the civil trial and the court stayed  the

proceedings per their agreement.

           There  is consequently no merit to Wyatt's claim  that

the  superior court's "denial of his motion for a stay"  violated

his constitutional rights.

                     3.    It  was  not  error to  grant  partial

               summary  judgment to the estate on  the  basis  of

               Wyatt's criminal conviction.

           Wyatt argues that the superior court erred in granting

the estate partial summary judgment in the civil lawsuit based on

his  conviction  in  the  criminal case. Wyatt  argues  that  his

criminal conviction should not have been given preclusive  effect

in  the civil case because it was still being appealed, and  that

there  was  consequently no final judgment to be given preclusive

effect.   The  estate responds that the judgment in the  criminal

case  was  final  upon  its  entry and that  the  superior  court

properly granted summary judgment.

           We have repeatedly held that the pendency of an appeal

is  irrelevant  for the purposes of res judicata  and  collateral

estoppel.17  We have acknowledged that "[t]he difficulty with the

rule that a judgment retains its preclusive effects even if it is

appealed  is  that  a  second judgment based  on  the  preclusive

effects  of  the first one should not stand if that  judgment  is

reversed."18  But that difficulty has no bearing on Wyatt's case.

His  conviction  was  upheld when he appealed  to  the  court  of

appeals and when he petitioned for hearing to this court.19   Nor

will "resolution of the appeal in the first action . . . preclude

the  second action entirely."20  Reversal of the conviction,  and

indeed,  acquittal  of  the  criminal  charge,  would  not   have

prevented the estate's wrongful death civil suit from succeeding.21

           We  acknowledge the possibility that the success of  a

given  appeal  may  be so highly probable that giving  preclusive

effect  to  the  judgment may be ill-advised.22   But  this  case

provides  no  opportunity to consider how that  issue  should  be

resolved.   And it would seem that an Alaska Civil Rule  60(b)(5)

motion to vacate any judgment resting on the preclusive effect of

the   earlier  judgment  following  its  reversal  would  provide

adequate relief in that situation.23

           Wyatt argues that the superior court erred in granting

summary  judgment because he claims issues remain to be presented

to  appellate  courts as part of Wyatt's post-conviction  motion.

Wyatt  does not offer any explanation why these issues could  not

have been raised in his earlier appeal.  Moreover, to give effect

to  Wyatt's  argument  we would have to  ignore  the  results  in

Wyatt's  unsuccessful criminal appeal and petition  for  hearing.

Wyatt does not adequately explain why appeals from any collateral

proceedings  are  relevant.  The preclusive  effects  of  Wyatt's

criminal  conviction  are not defeated by  the  pendency  of  any

post_conviction relief proceeding.24

           The  superior  court did not err in  granting  partial

summary judgment to the estate.

                     4.    The  superior court  did  not  err  in

               denying Wyatt's discovery request.

           Wyatt  argues that it was error to deny his  discovery

request for information about the estate's inventory of property.

He  asserts that this denial of discovery denied his due  process

rights.  Wyatt has inadequately briefed the issue, even under the

more relaxed standard we apply to pro se litigants.25  We will not

consider  the  issue  on its merits.  But as  we  noted  in  Part

III.B.2,  the  inventory list is not relevant to the  outcome  of

this case.

           5.    The superior court did not err in awarding costs

to the estate.

           Wyatt argues that the superior court erred in awarding

attorney's  fees  and  costs  to the estate  because  the  estate

allegedly  co-mingled  all costs and  fees  from  the  civil  and

probate proceedings.

            We   agree  with  the  estate's  assertion  that  the

attorney's fees issue is not before us because the superior court

did not award attorney's fees to the estate.

           The  estate  responds  to Wyatt's  costs  argument  by

contending  that  the  superior court  separated  the  civil  and

probate  matters  in  awarding costs to the  estate.   The  court

stated  that  it was adjusting the court award "to  reflect  only

those  costs incurred after the parties reached their agreement."

The   court's  award  is  not  facially  defective,  and  Wyatt's

conclusory  argument  does  not  identify  any  particular  costs

erroneously  awarded.  It appears to us that the court  carefully

reviewed  the  estate's expenses before awarding it $2,318.25  in

costs.  Wyatt summarily asserts that the estate "co-mingled"  the

costs  of  the  probate  and  civil  proceedings,  but  fails  to

demonstrate  that  the  court abused its discretion  in  awarding

costs.

IV.  CONCLUSION

           We  AFFIRM  the  superior  court's  decisions  in  all

respects.

_______________________________
1     The facts relevant to Wyatt's petition for hearing in  this
court  are  discussed  in Wyatt v. State, 981  P.2d  109,  110-12
(Alaska 1999).
2    Id. at 116.
3     Juliano  v.  Angelini, 708 P.2d 1289,  1291  (Alaska  1985)
(citing  Thrift  Shop, Inc. v. Alaska Mut. Savs. Bank,  398  P.2d
657, 658_59 (Alaska 1965)).
4    Dickerson v. Williams, 956 P.2d 458, 462 (Alaska 1998).
5    VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999).
6     Gold  Bondholders Protective Council v. Atchison, Topeka  &
Santa Fe Ry. Co., 658 P.2d 776, 779 (Alaska 1983).
7     The  three categories of property at issue here are Wyatt's
separate  property  (held  by Wyatt  before  the  marriage);  the
decedent's  separate  property; and  the  Wyatts'  joint  marital
property.
8      Davis  v.  Dykman,  938  P.2d  1002,  1006  (Alaska  1997)
(citations omitted).
9    Singh v. State Farm Mut. Auto. Ins. Co., 860 P.2d 1193, 1199
(Alaska 1993).
10     See Beluga Mining Co. v. State, Dep't of Natural Res., 973
P.2d 570, 578 (Alaska 1999).
11    Davis, 938 P.2d at 1006.
12     Wyatt cites Thrift Shop v. Alaska Mutual Savings Bank, 398
P.2d  657 (Alaska 1965), in support of his argument that  "it  is
essential  that  acceptance of the offer be  unequivocal  and  in
exact compliance with the requirements of [Wyatt's] offer."   But
this  case is clearly distinguishable from Thrift Shop, in  which
we  held  that no oral contract existed; the parties'  intent  in
Thrift  Shop did not become manifest until the terms  were  later
reduced to writing.  In comparison, as noted in Part III.B.1, the
record demonstrates that Wyatt understood that there was an  oral
agreement  and  understood the scope of the agreed-upon  property
transfer.
13     Wyatt's brief repeats and rephrases in different ways  his
argument about the estate's inventory of the property.  We reject
all  of  these  attempts  for the same reason:  Wyatt  explicitly
agreed  to  the transfer of all property in which he  potentially
had a claim.
14     The superior court, in discussing Wyatt's proposal stated:
"Once the appeal comes down, if it's affirmed, the stay would  be
lifted  . . . .  On the date that the appeal comes down, plus  10
days, the estate could then transfer that property to anybody, to
use it, do whatever they wanted to with it."
15     Wyatt invokes AS 13.12.803(f) in arguing that "[a] stay in
the  civil  proceedings  .  . . should have  been  [an]  absolute
right."   But  AS 13.12.803 addresses the effect of  homicide  on
intestate  succession,  wills, trusts,  and  other  property  and
interest  transfers.   It does not affect the  estate's  wrongful
death  claim  in  the civil proceedings, and it  has  no  bearing
whatsoever on Wyatt's voluntary agreement with the estate to stay
those proceedings.
16     Langfeldt-Halland v. Saupe Enters., Inc., 768  P.2d  1144,
1146  & n.23 (Alaska 1989) (stating that "an indigent person  has
no  right  to  appointed  counsel in most civil  cases,  although
certain  exceptions exist in the areas of termination of parental
rights,  child  custody,  paternity  suits,  and  civil  contempt
proceedings") (citations omitted).
17     Lyman  v. State, 824 P.2d 703, 705 (Alaska 1992) (applying
rule  to  collateral estoppel); Holmberg v. State, Div.  of  Risk
Mgmt.,  796 P.2d 823, 829 (Alaska 1990) (stating that "[a]  final
judgment  retains  all  of  its  res  judicata  effects   pending
resolution  of  an  appeal of the judgment") (citation  omitted);
Rapoport  v.  Tesoro Alaska Petroleum Co., 794 P.2d  949,  951-52
(Alaska 1990) (applying rule to collateral estoppel).
18    Holmberg, 796 P.2d at 829 (citations omitted).
19    Wyatt, 981 P.2d at 112, 116.
20    Holmberg, 796 P.2d at 829 (emphasis added).
21    One reason is that the burden of proof is more stringent in
a  criminal  action  than in a civil action.  See,  e.g.,  United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984)
(ruling  that  double  jeopardy does  not  bar  civil  forfeiture
proceeding following acquittal on related criminal charges).
22    18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND  PROCEDURE   4433  (2d  ed. 2002) (stating  that  "[i]n  some
cases, litigants and the courts have collaborated so ineptly that
the  second judgment has become conclusive even though it  rested
solely on a judgment that was later reversed").
23    Lyman, 824 P.2d at 705 & n.7.
24     See also WRIGHT & MILLER, supra note 22 (stating that  "it
has  been  ruled  that  the  preclusion  effects  of  a  criminal
conviction  are not defeated by the pendency of a post_conviction
proceeding that attacks the conviction") (citation omitted).
25     Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737  (Alaska
1999).