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Peterson v. Ek (06/25/2004) sp-5818
Peterson v. Ek (06/25/2004) sp-5818
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
RUSSELL J. PETERSON, JR., )
) Supreme Court No. S-10535
Appellant, )
) Superior Court No.
v. ) 1JU-00-1468 CI
)
TYNA EK, ) O P I N I
O N
)
Appellee. ) [No. 5818 - June 25,
2004]
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Russell J. Peterson, Jr., pro
se, Juneau. Tyna Ek, pro se, Seattle,
Washington.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Russell Peterson and Tyna Ek entered into a contract to
renovate and sell a boat, the OHana Kai. Peterson breached the
contract and Ek successfully brought a claim in the superior
court to recoup damages resulting from the breach. Peterson
appeals the decision of the superior court finding him liable to
Ek for damages resulting from breach of contract, trespass to
chattels, and attorneys fees. We affirm the superior court in
all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Tyna Ek and Russell Peterson met in Seattle during the
summer of 1999. Ek was a resident of Washington state. During
the course of their friendship, Peterson told Ek about a boat he
had previously owned, the OHana Kai. Peterson told Ek that he
had sold the boat to a friend with an agreement that he would
have an option to buy the boat back in the future. According to
Ek, she did not want to buy a boat, but eventually agreed to do
so at Petersons urging, provided that the two enter into a
written contract. Ek commissioned Jim Sepel to survey the
vessel, which was located in Juneau. Sepel estimated the value
of the vessel at $50,000.1 Sepel warned Ek that the boat was a
money pit that she should avoid; Eks financial advisor cautioned
her similarly.
On January 18, 2000 Peterson and Ek entered into a
contract detailing their mutual rights and responsibilities if
and when Ek purchased the OHana Kai. The parties intent in
entering into the contract was to pool Ms. Eks financial
resources with Mr. Petersons labor and renovation skill and
effort to maximize the value of the Boat for resale during the
summer of 2001. Ek would pay the entire purchase price of the
vessel and be its sole legal owner. The contract required
Peterson [a]t his own cost and expense, and utilizing his labor .
. . [to] completely refurbish the Boat and complete efforts to
renovate the Boat, converting it to a pleasure boat with the goal
of maximizing resale value. Peterson was responsible for all
costs and labor required to make the vessel seaworthy so that it
could be transported from Juneau to Seattle within one month of
the date of purchase. Peterson was responsible for keeping the
vessel safely moored in Seattle, for moorage costs, and for any
fines or fees incurred as a result of his use or renovation of
the boat. Ek was to provide Peterson with $2,000 for the vessels
renovation, which she would recoup upon the vessels sale. The
contract provided that Peterson could live on the vessel rent
free until June 15, 2001 so long as he was making reasonable
progress in renovating the vessel and was not in breach of the
contract. Ek had the right to sell the vessel after June 15,
2001 at a price left to her discretion. The proceeds from the
sale would be allocated in the following order. First, Ek would
be reimbursed for the full purchase price of the vessel,
including the $2,000 cash advance and all other cash expenses she
incurred as a result of her ownership of the vessel. Next,
Peterson would be reimbursed for any costs associated with his
renovation efforts that could be verified by receipt. Finally,
any remaining proceeds, minus the costs of sale, would be split
equally between Peterson and Ek. Proceeds would be similarly
distributed in the event that Peterson breached the contract, the
only difference being that Petersons potential share of the
profits would be capped at $5,000 if he breached the contract
within six months of signing it. A choice of law provision
provided that the contractual terms would be interpreted in
accordance with Washington law.
Ek purchased the vessel for $43,000 from Murray Damitio
in February 2000 and registered it in her name. Ek provided
Peterson with a Permission of Use that gave him full charge and
capacity to act in [Eks] behalf with regard to all matters
involving the above named vessel in [her] absence.2 Peterson,
aided by a $1,000 loan from Ek, left Seattle and went to Juneau
in February 2000 to begin work on the vessel. Ek loaned Peterson
her cellular telephone so that they could communicate while he
prepared the vessel for the trip to Seattle. According to
Peterson, when he arrived in Juneau and saw the vessel, he
realized that renovations were more extensive than he had
originally thought. The trial court found that Petersons
communications with Ek nonetheless suggested that, despite the
delays, he anticipated traveling to Seattle sometime in April
2000.
Ek stated that Peterson contacted her periodically
during that period and told her various stories about why the
boat needed additional work before it could be brought to
Seattle. According to Ek, Peterson asked her to advance him
money so that he could make repairs to the vessels engine that
were necessary to get the vessel to Seattle. Ek wired Peterson a
total of $4,000 in March and April 2000. According to Ek, $1,500
was a loan for the purchase of engine parts, $500 was to pay a
criminal fine owed by Peterson in Juneau, and $2,000 was to be
used to pay for moorage and a mechanic.
By May 2000, Ek began to receive unanticipated bills
for vessel parts and moorage, unauthorized charges on her credit
card, and extremely high cell phone bills. Ek was charged
several thousands of dollars by vendors for mechanical parts that
Peterson ordered without Eks authorization. Ek was also charged
for moorage at Trucano Construction. Ek paid Trucano $1,391.01,
but instructed Trucano that Peterson was not authorized to incur
additional charges on her behalf.
In June 2000 Ek informed Peterson that he was in
breach of their contract and that she planned to sell the vessel
if he did not begin his trip to Seattle by August 31, 2000.
According to Ek, Peterson did not respond to this letter.
Because she had not heard from Peterson for some time, Ek then
contacted the Coast Guard to ask for a status check on the OHana
Kai. The Juneau police left a message on the vessel asking
Peterson to contact Ek, after which Peterson began communicating
with Ek regularly via e-mail. On August 28, 2000 Ek sent
Peterson an e-mail informing him that he had been in breach of
contract for some time and that he was not authorized to move the
vessel anywhere until it was insured.
Ek traveled to Juneau on September 4, 2000 to locate
and regain possession of the OHana Kai. On September 5 she
attempted to regain possession of the vessel with the assistance
of marine surveyor Jim Sepel. Peterson refused to turn over
possession. Ek instructed Peterson not to move the vessel.
Peterson refused to agree to not move the vessel, but told Ek
that he would not take the vessel outside of Juneau. Peterson
filed a labor lien in the amount of $22,418 against the vessel
that same day.
Peterson then took the vessel to Petersburg, where it
was moored from September 8 to September 15, 2000. He registered
the vessel under a false name and left without paying for
moorage. In e-mails exchanged between Peterson and Ek during
this period, Peterson maintained that all he wanted to do was to
remove his possessions from the vessel, but he did not take
advantage of Eks repeated attempts to make arrangements for him
to move his things off the vessel and into a storage facility.
Peterson left Petersburg and traveled to Taku Harbor, where the
vessel was seized by police pursuant to court order.
After the vessels seizure there was a great deal of
disagreement between the parties as to what property on the boat
belonged to Peterson and how he would obtain the property. On
September 25, 2000 Ek arranged for a moving company to remove
Petersons personal property from the vessel and deliver it to
him. Peterson claimed that Ek had not returned much of his
property. In April 2001, before trial, Peterson and Ek entered
into a settlement whereby Ek agreed to give Peterson any personal
property that remained on the OHana Kai (except for any property
considered to be a part of the vessel or its equipment, including
an anchor, line, and chain) in exchange for an agreement by
Peterson to limit any potential suit against Ek to a contract or
quantum meruit claim only for the amount of his lien, and to
raise no other claims. In March 2001 Greg Dockery filed a lien
against the vessel, alleging that Ek owed him $4,000 for his
labor and $1,200 for an anchor, line, and chain that he had
loaned to Peterson.
B. Proceedings
Ek brought suit against Peterson in September 2000.
Before trial, Ek successfully moved to compel Peterson to
disclose contact information for numerous people whom Ek believed
might have information material to the case, including Petersons
father. Trial was held on September 5-7 and 11-13, 2001 before
Superior Court Judge Patricia A. Collins.
The superior court found that the parties had formed a
contract in which Peterson, as an independent contractor, would
repair the vessel and prepare it for resale. Judge Collins found
that Peterson breached the contract in numerous ways, including
failing to pay for moorage, failing to complete repairs necessary
to transport the vessel from Juneau to Seattle, incurring debts
against Ek and the vessel without authorization, and refusing to
turn over the vessel to Ek following his breach of contract and
upon written demand. Judge Collins found that Peterson hired
others to do work on the vessel and either failed to pay them
personally or told them that Ek would pay them, and ordered
materials that he failed to pay for personally or improperly
billed to Eks credit card. Judge Collins also found that there
had not been any waiver or modification of the contract because
Eks attempts to salvage the contract were aimed at mitigating
losses, and that Petersons continuing promises of performance
justified Eks delay in declaring breach and terminating her
business relationship with Peterson.
Damages resulting from Petersons breach of contract
included Eks cash advances to Peterson, moorage fees to the date
of repossession, travel costs and fees necessary to repossess the
vessel, costs for storage of Petersons personal belongings, cell
phone charges incurred by Peterson, and a rent advance to
Peterson. Judge Collins rejected Eks damage claims for the
purchase price of the vessel, administrative costs surrounding
the vessels purchase, and costs associated with purchasing a
court-ordered bond. Eks claims for negligent and intentional
infliction of emotional distress were also denied. Judge Collins
also awarded Ek damages for trespass to the vessel.
Judge Collins found that there was no agreement between
Peterson and Ek that he would be paid hourly for his labor, and
that the receipts and invoices he submitted for reimbursement
were a mystery, untrustworthy, and suspect in numerous instances.
Judge Collins also found, based on the language of Petersons and
Eks settlement agreement, which provided that Peterson retains a
right to pursue his current lien against Ms. Ek for personal
labor and materials . . . under a breach of contract or quantum
meruit legal theory, that the parties had agreed that Peterson
could seek to recover under a theory of quantum meruit. After
finding that Peterson was entitled to recover under quantum
meruit, Judge Collins found that Petersons labor and materials
increased the value of the vessel by $3,000, but that the award
should be offset against Eks damages.
After subtracting Petersons $3,000 quantum meruit
award, Judge Collins awarded Ek $13,680.62 in net damages,
$7,053.75 in attorneys fees, and $810 in costs pursuant to Alaska
Civil Rules 68(b) and 79(f)(5). Peterson appeals.
III. STANDARD OF REVIEW
Interpretation of a contract is a question of law to
which we apply our independent judgment.3 We review a trial
courts findings of fact under the clearly erroneous standard and
will reverse the trial courts factual findings only when, after a
review of the entire record, we are left with a definite and
firm conviction that a mistake has been made.4 A trial courts
determination of damages is a question of fact which we will
affirm unless clearly erroneous.5
We review the record with the knowledge that it is the
province of the trial court to judge witnesses credibility and
weigh conflicting evidence.6 We review a trial courts discovery
rulings for abuse of discretion.7 The determination of which
rule applies to a partys motion for attorneys fees is a question
of law to which we apply our independent judgment.8
IV. DISCUSSION
Peterson raises numerous points of error on appeal. He
argues that the superior court erred by failing to credit him for
his labor and for materials that he allegedly purchased for the
vessel; requiring him to pay for moorage costs, cell phone bills,
repossession costs, and independent contractors who worked on the
vessel; failing to address his claim that Ek misappropriated an
anchor; ordering him to disclose his fathers phone number and
address; basing its decision on his bizarre behavior; requiring
him to pay damages for trespass to the vessel; making factual
findings that there were no noticeable improvements to the
vessel; and awarding attorneys fees to Ek.9 Ek argues that
Peterson is not entitled to recovery under a theory of quantum
meruit, that the trial court inadvertently neglected to award her
damages for Petersons unauthorized use of her credit card, and
that the trial court erred in awarding her only $260 in damages
for trespass to the vessel.
A. The Trial Court Did Not Err in Failing To Compensate
Peterson for the Value of His Labor and for Materials Purchased
for the Vessel.
Peterson argues that the trial court erred by failing
to compensate him for his labor or for materials that he
allegedly purchased for the vessel.10
We interpret the contractual language in accordance
with Washington law due to the contracts choice of law clause.11
Washington courts reject the plain meaning rule of contractual
interpretation and interpret the terms of a contract in light of
conduct, subsequent acts of the parties, and circumstances
surrounding contract formation, as well as the literal meaning of
the language itself.12
The contract reads in pertinent part:
At his own cost and expense, and utilizing
his own labor, Russell Peterson shall
completely refurbish the Boat and complete
efforts to renovate the Boat, converting it
to a pleasure boat with the goal of
maximizing resale value. Mr. Peterson agrees
not to ask Ms. Ek to contribute or advance
any of her financial resources to the effort,
and further agrees that said renovation shall
be completed no later that June 15, 2001.
The only argument set forth by Peterson for reimbursing
his labor is his personal belief that he has been treated
unfairly and that his labor was devalued by the superior court.
There is nothing in the circumstances surrounding the formation
or performance of the contract, nor in the language of the
contract itself, to suggest that either party intended that
Peterson be paid as an hourly employee. The parties clearly
contemplated that Peterson would be compensated, not with an
hourly wage, but instead by being allowed to live on the vessel
rent free and by sharing in half of the potential profit from the
vessels sale.
Peterson was entitled to be reimbursed for expenses
related to the renovation of the vessel once Ek had fully
recouped her own financial investment. But Ek did not fully
recoup her own investment. Moreover, the contract provided that
Peterson was to be reimbursed only for those costs related to the
vessels renovation that he could verify by receipt. Judge
Collins found that Petersons receipts were completely lacking in
credibility, a determination that is supported by the record and
to which we defer.13 Each of these reasons fully supports
denying Petersons claim for expense reimbursement.
In sum, our independent review of the contractual
language supports the trial courts denial of Petersons claims for
reimbursement for labor and its finding that Petersons
documentation of alleged expenses was not credible. For these
reasons, the trial court did not err in failing to award Peterson
for labor or materials.
B. The Trial Court Did Not Err in Its Award of Contractual
Damages.
A. Under Washington law, the injured party is entitled to
recovery of all damages naturally accruing from the [contractual]
breach, and to be put in as a good a position as he would have
been in had the contract been performed.14 Parties in breach of
contract are liable for foreseeable damages or for damages
resulting from special circumstances of which the breaching party
had reason to know.15
1. The trial court did not err in awarding Ek costs associated
with repossessing the vessel.
Judge Collins awarded Ek $3,829.38 for the costs of
repossessing the vessel and travel expenses associated with the
repossession. Peterson argues that this award was in error
because he would have given up the vessel voluntarily if Ek had
allowed him to remove his personal property from the vessel.
Petersons argument is not supported by the record.
When Ek traveled to Juneau she located Peterson on the vessel,
but he refused to turn over possession of the vessel. In
violation of Eks express instructions not to move the vessel,
Peterson took the vessel to Petersburg, where he registered it
under a false name. He then traveled to Taku Harbor, where he
remained until the vessel was located and seized by police.
There is also evidence in the record that Ek made numerous
attempts to allow Peterson to pack up his personal items and
transfer possession of the vessel without resorting to
repossession, including loaning Peterson money for a storage
space. Because repossession of the vessel was a foreseeable
result of Petersons material breach of the contract and his
failure to surrender possession, it was appropriate for the trial
court to award Ek for costs associated with repossessing the
vessel.
2. The trial court did not err in awarding Ek moorage costs up
to the date of repossession.
Judge Collins awarded Ek $3,784.95 for moorage fees up
to the date that the vessel was repossessed. Peterson argues
that this was error because Ek paid for private moorage, rather
than opting for public moorage, which would have been cheaper.
Although injured parties do have a duty to make reasonable
efforts to mitigate their damages,16 it was not unreasonable for
Ek to moor the boat at Trucano Construction rather than at a
public mooring space. In fact, during the time that the vessel
was in his possession, Peterson also moored the vessel at Trucano
Construction.17 The trial court did not err in awarding Ek
private moorage costs incurred until the date of repossession.
3. The trial court did not err in awarding Ek damages
for unauthorized cell phone usage.
The trial court found that Peterson ran up very high
bills on the cell phone Ek loaned to Peterson, and required
Peterson to pay Ek $1,211.31 in damages. Peterson argues that
this was error because Ek gave him permission to use her phone
and nearly all of the calls were to her. Because the charges
were excessive and because the phone would have been returned
months earlier had Peterson not breached the contract, the trial
court did not err in awarding Ek for damages resulting from
Petersons excessive cell phone usage.
C. The Trial Court Did Not Err in Determining that
Peterson Was Responsible To Pay Individuals Whom He
Hired To Work on the Vessel.
Peterson argues that the trial court erred by holding
him financially responsible to contractors who worked on Eks
vessel. Peterson claims that a Permission of Use signed by Ek
gave him the authority to hire workers who Ek would be liable for
paying. The Permission of Use, which was revoked by Ek on
September 3, 2000, stated that Petersons permission of use shall
include but not be limited to repairs, maintenance, navigation,
seaworthiness, storage, berthing, and safe travel through
national and international waterways without restriction through
Canada and its borders. At trial, Petersons testimony implied
that the Permission of Use gave him permission to hire workers
without consulting Ek and that Ek would be liable for paying the
workers. Ek testified that the Permission of Use was intended
only to give Peterson authority to take necessary actions
concerning the vessel while traveling through Canada. Judge
Collins found that Eks testimony was far more credible than
Petersons and that [n]o credible testimony was introduced that Ek
agreed to pay [workers hired by Peterson] for [their] work.
Because we defer to the trial court on issues of witness
credibility,18 and because Judge Collins found Eks testimony
regarding the Permission of Use to be more credible, we affirm
the trial courts ruling that the Permission of Use did not
authorize Peterson to hire workers to whom Ek would be
financially liable.
D. Judge Collins Was Not Personally Biased Against
Peterson.
Peterson argues that Judge Collins was biased against
him, that this bias prejudiced her decision, and that with the
benefit of hindsight he would have preferred a jury trial. To
support his claim of bias, Peterson points to Judge Collinss
comments that Petersons behavior was childish, inappropriate,
thoughtless and, at times, mean-spirited and obnoxious, which she
made when ruling on Eks claims for negligent and intentional
infliction of emotional distress.
It cannot be said that a judge has a personal bias
against a party simply because she forms an opinion of the case
before her based on the evidence she hears at trial.19 In order
to prove a claim of judicial bias, Peterson must show that Judge
Collins formed an opinion of him from extrajudicial sources.20
In this case, Judge Collins had to consider and evaluate
Petersons conduct in order to determine whether Ek had made out a
prima facie case for negligent or intentional infliction of
emotional distress.21 Judge Collinss comments were supported by
the record and do not imply judicial bias.
E. It Was Not an Abuse of Discretion for the Trial Court
To Compel Peterson To Release His Fathers Contact
Information.
Judge Collins ordered Peterson to release his fathers
address and telephone number to Ek. Peterson argues that this
was an abuse of discretion.
Under Alaska Civil Rule 26 [p]arties may obtain
discovery regarding any matter, not privileged which is relevant
to the subject matter involved in the pending action.22 It is
not necessary that the information actually be admissible at
trial, only that the information sought might reasonably lead to
the discovery of admissible evidence.23 This court reviews
discovery rulings for abuse of discretion24 and will find error
only when left with a definite and firm conviction after
reviewing the whole record that the trial court erred.25 Ek
stated that Peterson had discussed the contract with his father.
The parties understanding of the contract at the time of its
execution was central to many of Petersons claims at trial, and
Petersons father might have been able to provide Ek with relevant
and admissible evidence. The trial courts order to compel
Peterson to disclose his fathers address was appropriate under
Civil Rule 26 and was well within the courts discretion.
F. Ek Has Waived Her Claims on Appeal by Not Filing a
Cross-Appeal.
In her brief, Ek argues that the trial court
incorrectly awarded Peterson recovery in quantum meruit, that the
trial court inadvertently forgot to credit Ek for damages
resulting from Petersons unauthorized use of her credit card, and
that the trial courts award of damage for trespass to chattels
was too low.
Alaska Appellate Rule 204(a)(2) provides that, once one
party has filed a timely notice of appeal, any other party may
file its notice of appeal within fourteen days or within thirty
days of the clerks date of distribution, whichever is longer. We
have consistently held that failure to file a cross-appeal waives
the right to contest rulings below.26 Because Ek failed to file
a cross-appeal, all three claims of error raised in her brief are
waived.
G. The Trial Court Did Not Err in Awarding Ek Thirty
Percent of Her Reasonable Attorneys Fees.
The trial court awarded Ek $7,053.75 in attorneys fees
pursuant to Alaska Civil Rule 68.27 Civil Rule 68 applies in
this case because Ek made an offer of settlement, that offer was
not accepted, and Ek ultimately recovered an amount that was more
than five percent less favorable to Peterson than the amount
offered in settlement.28
Peterson argues that the trial court erred in granting
attorneys fees to Ek because he was the prevailing party and that
Ek should pay his attorneys fees for the specific issues on which
he prevailed. Civil Rule 68(c) mandates that an offeror who
receives costs and fees be considered the prevailing party for
the purposes of an award of attorneys fees; therefore, Ek must be
considered the prevailing party for the purposes of Civil Rule
82.29 Petersons claim that he is the prevailing party under Rule
82 is without merit.
Peterson also claims that the amount of the award was
unjustified. Because Rule 68 mandates that Ek be granted thirty
percent of her reasonable actual attorneys fees incurred after
the date of her offer of judgment, there was no abuse of
discretion.
The award of attorneys fees is affirmed.
V. CONCLUSION
We AFFIRM the decision of the superior court in all
respects.
_______________________________
1 Sepel conducted another survey of the vessel in March
2001, which indicated that the vessel was worth $55,000. Sepel
concluded that much of the increase in value after February 2000
was due to the fact that the engine had been rebuilt, a task
which had been completed primarily by someone other than
Peterson.
2 Ek revoked the Permission of Use on September 3, 2000.
The superior court made a factual finding based on testimony
presented at trial that the Permission of Use was only intended
to give Peterson the powers necessary to travel through Canada
with the vessel.
3 Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989).
4 Demoski v. New, 737 P.2d 780, 784 (Alaska 1987).
5 Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001).
6 Maloney v. Maloney, 969 P.2d 1148, 1150 (Alaska 1998).
7 Fletcher v. South Peninsula Hosp., 71 P.3d 833, 844
(Alaska 2003).
8 Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).
9 Ek argues that Peterson waived all of his claims on
appeal because he failed to cite legal authority for any of his
arguments and relied on personal knowledge of the trial rather
than the record. We judge a pro se litigants performance by a
less demanding standard. Breck v. Ulmer, 745 P.2d 66, 75 (Alaska
1987). But even when a pro se litigant is involved, an argument
is considered waived when the party cites no authority and fails
to provide a legal theory for his or her argument. See A.H. v.
W.P., 896 P.2d 240, 243 (Alaska 1995) (pro se appellant waived
claims due to cursory briefing that did not cite to legal
authority); Gates v. City of Tenakee Springs, 822 P.2d 455, 460
(Alaska 1991) (pro se appellant waived claims on appeal when
claims briefed cursorily or not addressed at all). Although
Peterson often failed to cite legal authority to support his
arguments, his briefing was such that we could discern his legal
arguments and Ek could reply to them. We therefore find that
Petersons briefing of his case was adequate and that he has not
waived his claims on appeal.
10 Peterson also claims that his friend, Greg Dockery,
loaned him an anchor, line, and chain so that he could make the
trip to Seattle. According to Peterson he paid Dockery for the
anchor, rope and chain and Ek sold the vessel with the anchor,
rope, and chain still on it. Even if Ek did misappropriate these
items, Peterson does not have standing to assert the claim of a
third party. Standing in this court is a rule of judicial self-
restraint that asks whether the person raising a particular claim
is a proper party to request an adjudication of a particular
issue. Moore v. State, 553 P.2d 8, 23 n.25 (Alaska 1976)
(quoting Flast v. Cohen, 392 U.S. 83, 100-01 (1968)). We cannot
consider the purported transfer of the materials lien from
Dockery to Peterson because it was not in the record before the
superior court and was improperly included in Petersons excerpt
of record. Alaska R. App. P. 210. See also B.B. v. D.D., 18
P.3d 1210, 1214 (Alaska 2001) (holding that we cannot properly
receive and consider evidence that was not presented to and
considered by the trial court). Furthermore, any payment that
Peterson did make for the anchor, line, and chain would have been
considered materials for which he could not be reimbursed because
Ek did not recoup her own financial investment.
11 A choice of law clause in a contract will generally be
given effect unless (1) the chosen state has no substantial
relationship with the transaction or there is no other reasonable
basis for the parties choice, or (2) the application of the law
of the chosen state would be contrary to a fundamental public
policy of a state that has a materially greater interest in the
issue and would otherwise provide the governing law. Restatement
(Second) of Conflict of Laws 187 (1971).
12 Berg v. Hudesman, 801 P.2d 222, 229 (Wash. 1990).
13 Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482
P.2d 842, 845-48 (Alaska 1971).
14 Northwest Land & Inv. Inc. v. New West Fed. Sav. & Loan
Assn, 786 P.2d 324, 329-30 (Wash. App. 1990).
15 Wilkins v. Grays Harbor Cmty. Hosp., 427 P.2d 716, 721
(Wash. 1976).
16 Westland Const. Co. v. Chris Berg, Inc., 215 P.2d 683,
691 (Wash. 1950).
17 Peterson also argues that the contract was modified to
make Ek responsible for moorage, among other things, a claim the
superior court found to be not credible.
18 Harrower v. Harrower, 71 P.3d 854, 861 (Alaska 2003)
(quoting Davila v. Davila, 876 P.2d 1089, 1092 (Alaska 1994))
(holding that it is function of trial court to judge witnesses
credibility and to weigh conflicting evidence).
19 State v. City of Anchorage, 513 P.2d 1104, 1113 (Alaska
1973), overruled on other grounds by State v. Alex, 646 P.2d 203
(Alaska 1982).
20 See U.S. v. Grinnell Corp., 384 U.S. 563, 583 (1966)
(The alleged bias and prejudice to be disqualifying must stem
from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from his
participation in the case.).
21 A claim of intentional infliction of emotional distress
requires the court to form an opinion on the nature of the
conduct at issue in order to determine whether a party has made a
prima facie case. Lybrand v. Trask, 31 P.3d 801, 803 (Alaska
2001) (plaintiff must prove that defendant intentionally or
recklessly engaged in conduct that was extreme or outrageous in
order to make prima facie case for intentional infliction of
emotional distress).
22 Alaska R. Civ. P. 26(b)(1).
23 In re Mendel, 897 P.2d 68, 73 (Alaska 1995).
24 Fletcher v. South Peninsula Hosp., 71 P.3d 833, 844
(Alaska 2003).
25 Id. (quoting Christensen v. NCH Corp., 956 P.2d 468,
473 (Alaska 1998)).
26 See, e.g., Municipality of Anchorage v. Gentile, 922
P.2d 248, 265 n.26 (Alaska 1996); McQueary v. McQueary, 902 P.2d
1326, 1327 n.3 (Alaska 1995); Cameron v. Hughes, 825 P.2d 882,
885 n.5 (Alaska 1992); Johnson v. Nangle, 677 P.2d 242, 247 n.3
(Alaska 1984).
27 Alaska Rule of Civil Procedure 68 provides in pertinent
part:
(a) At any time more than 10 days before the
trial begins, either the party making a claim
or the party defending against a claim may
serve upon the adverse party an offer to
allow judgment to be entered in complete
satisfaction of the claim . . . .
(b) If the judgment finally rendered by the
court is at least 5 percent less favorable to
the offeree than the offer . . . the offeree
. . . shall pay all costs as allowed under
the Civil Rules and shall pay reasonable
actual attorney fees incurred by the offeror
from the date the offer was made as follows:
. . . .
(3) if the offer was served 90 days or
less but more than 10 days before the trial
began, the offeree shall pay 30 percent of
the offerors reasonable actual attorney fees.
28 Alaska R. Civ. P. 68(c). Ek served an offer of
judgment on Peterson on August 24, 2001 offering to settle the
case for $10,000. Peterson did not accept the offer and trial
began eleven days later. Eks recovery of over $13,680 in damages
was at least 5 percent less favorable to [Peterson] than the
offer.
29 Id.
