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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.