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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alderman v. Iditarod Properties, Inc. (12/30/2004) sp-5856

Alderman v. Iditarod Properties, Inc. (12/30/2004) sp-5856

     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


CALEB ALDERMAN; BARBARA       )
ALDERMAN; ALASKA                   )
GUESTOURS, INC., dba FOURTH                                 )
                                                            Supre
                                                            me
                                                            Court
                                                            No. S-
                                                            10975
AVENUE THEATER TROLLEY        )
TOURS,                                                          )
                                   Superior Court Nos.
                              )    3AN-98-7297 CI
             Appellants,                )    3AN-02-3896 CI
                              )
     v.                       )    O P I N I O N
                              )
IDITAROD PROPERTIES, INC.,         )     [No. 5856 - December 30,
                                   2004]
dba FOURTH AVENUE THEATRE,    )
                              )
             Appellee.                  )
_______________________________    )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:  Robert C. Erwin, Erwin & Erwin,
          LLC,  Anchorage, for Appellants.   Walter  T.
          Featherly  and Teresa S. Ridle, Patton  Boggs
          LLP, Anchorage, for Appellee.

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

          CARPENETI, Justice.


I.   INTRODUCTION

          This  appeal  arises out of a failed  business  venture

between  Iditarod  Properties and  the  Aldermans.   In  2001  we

affirmed  a  judgment  for  trademark  infringement  against  the

Aldermans,  but  we vacated the portion of the judgment  allowing

Iditarod  to recover unpaid rent.  Iditarod subsequently  brought

suit  against the Aldermans in superior court seeking to  recover

the  unpaid rent, and it prevailed on its claim following a bench

trial.   The Aldermans appeal the decision of the superior  court

granting  Iditarod recovery for unpaid rent, attorneys fees,  and

prejudgment  interest.  We affirm the judgment and the  award  of

prejudgment  interest,  but  we reverse  the  award  of  enhanced

attorneys fees.

II.  FACTS1 AND PROCEEDINGS

          Robert  Gottstein,  the  sole shareholder  of  Iditarod

Properties (Iditarod), is the owner of the Fourth Avenue Theatre,

an   historic  building  in  downtown  Anchorage.   In  1995  the

Aldermans2  obtained a permit to park their trolley in  front  of

the  Fourth  Avenue  Theatre,  and  they  entered  into  an  oral

agreement  with  Gottstein under which  Iditarod  employees  sold

trolley  tour tickets in the theaters gift shop and the Aldermans

rented  the theater ticket booth and office space in the theaters

basement.   The  arrangement survived until  1997  when  numerous

conflicts  between  Iditarod and the Aldermans  resulted  in  the

Aldermans  moving to an office space next door  to  the  theater.

After moving, the Aldermans registered and operated their trolley

tour  under  the name Fourth Avenue Theater Trolley Tours,  which

prompted  Iditarod to file suit against the Aldermans  for  trade

name infringement.

          Jury  trial  began  in May 1999.  After  the  close  of

evidence Superior Court Judge Brian C. Shortell granted Iditarods

motion  to amend its pleading to add a cause of action for breach

of  the oral lease agreement.  The jury found that Iditarod owned

the  trade  name  Fourth Avenue Theatre, that the  Aldermans  had

infringed  on  that trade name, that the Aldermans  violated  the

rental  agreement by failing to pay Iditarod fifteen  percent  of

the  revenues  from the trolley tickets sold at the theater,  and

          that the Aldermans owed Iditarod $13,924.05 for unpaid rent.

          We  decided  Alderman v. Iditarod Properties,  Inc.  in

2001.3   We affirmed the trial courts judgment that the Aldermans

infringed on Iditarods trade name, Fourth Avenue Theatre, and its

award  of  enhanced  attorneys fees to  Iditarod.4   However,  we

vacated  the judgment for unpaid rent because we found  that  the

Aldermans  had  suffered substantial prejudice  because  Iditarod

unduly delayed pleading the breach of contract claim until  after

the close of evidence.5  On January 14, 2002 Iditarod filed a new

complaint against the Aldermans seeking damages for the breach of

the agreement to pay rent.

          The  Aldermans moved for summary judgment, arguing that

Iditarods  claim  was barred by res judicata and  the  applicable

statute  of  limitations.  The superior court denied the  motion,

ruling  that  Iditarods  claim was not  barred  by  res  judicata

because  our  2001 decision was not a ruling on  the  merits  and

because the action for rent was fundamentally different from  the

action  for  trademark infringement.  The court  found  that  the

cause  of  action  arose prior to August 7, 1997,  and  that  the

action  was  therefore timely because the applicable  statute  of

limitations was six years under the former AS 09.10.053.6

          Trial commenced on November 15, 2002.  Iditarod offered

into  evidence  the testimony of Robert Gottstein and  the  prior

sworn  testimony of Caleb Alderman, Barbara Alderman, and Francis

Gallela,  the  last over the Aldermans objection.  The  Aldermans

offered  into  evidence  the testimony  of  Caleb  Alderman,  the

corporate  income tax returns of Alaska Guestours,7 and  receipts

of trolley ticket purchases.

          The  superior  court  entered  judgment  in  favor   of

Iditarod  on  November  21,  2002.   The  court  found  that  the

Aldermans  had  entered  into  an oral  contract  with  Gottstein

whereby  they  agreed to pay fifteen percent of Alaska  Guestours

gross  revenue  to  Iditarod  Properties  and/or  Gottstein.   In

determining  how  rent was calculated, the court  relied  on  the

          Aldermans prior sworn testimony, the prior sworn testimony of

Francis Gallela, and the Aldermans tax returns.  The court  found

that the Aldermans were obligated to pay $24,920.55 in rent,  but

it  offset this amount by $11,817 which was retained by Gottstein

from  ticket sales from the 1997 season.  Accordingly, it ordered

the Aldermans to pay Gottstein the balance of $13,103.55.

          Iditarod  sought  to  recover its full  attorneys  fees

accruing  from  the  date  of the 1999 superior  court  judgment.

Iditarod  claimed  that it had incurred $61,266.25  in  attorneys

fees,  an amount which included fees for all work after the first

trial,  including  appellate work.  The  Aldermans  opposed  this

motion.   The  court awarded Iditarod $18,170 in  attorneys  fees

under  Alaska  Civil Rule 82, an amount which  represented  fifty

percent  of  Iditarods actual fees for the 2002 trial,  excluding

the  post-1999 appellate work.  The court enhanced the fee  award

because  the  Aldermans had appealed the  1999  judgment  on  the

grounds that they were denied the opportunity to present evidence

in their defense but then failed to introduce any new evidence at

the  2002 trial; because Iditarod made an offer of judgment  that

the  Aldermans rejected; and because the Aldermans defenses  were

generally weak.  The Aldermans motion for reconsideration on this

issue was denied.

          The  court  ordered  the Aldermans to  pay  $18,170  in

attorneys fees, $582.29 in costs, and $1,235.34 for the remainder

owed  for unpaid rent,8 for a total judgment of $19,987.63.   The

Aldermans  appeal  on  several  grounds.   They  claim  that  the

superior court erred in denying their motion for summary judgment

on the grounds that Iditarods suit was barred by res judicata and

the  applicable  statute of limitations, in admitting  the  prior

sworn   testimony  of  Francis  Gallela,  in  awarding   enhanced

attorneys  fees,  and  in calculating the amount  of  prejudgment

interest.

III. STANDARD OF REVIEW

          A  trial  courts determinations whether  an  action  is

          barred by res judicata or the applicable statue of limitations

present  questions  of  law,  which  we  review  de  novo.9   The

determination of the date on which a cause of action accrued is a

factual finding.10  Such factual findings are reviewed for  clear

error.11

          A determination regarding the admissibility of evidence

is  a  matter within the discretion of the trial court,  and  its

rulings  will  not be disturbed absent an abuse of  discretion.12

If the admissibility of evidence turns on whether the trial court

applied the correct legal standard, we review the courts decision

using our independent judgment.13

          We  review an award of attorneys fees for an  abuse  of

discretion,  which we will find only if, after a  review  of  the

entire  record,  we are left with a definite and firm  conviction

that  the  trial court erred in its ruling.14  If  the  award  of

attorneys fees requires interpretation of the Alaska Civil Rules,

we  apply  our independent judgment.15  The date when prejudgment

interest begins to accrue is a question of law which we review de

novo.16



IV.  DISCUSSION

     A.   The Action To Recover Rent Is Not Barred by Res Judicata.

          A.   The Aldermans argue that Iditarods action to recover rent is

barred  by  res judicata because Iditarod should have raised  the

claim  at  the  first trial but did not properly  do  so.17   The

doctrine of res judicata  prevents a party from suing on a  claim

which  has been previously litigated to a final judgment by  that

party.  18  And, as we stated in Plumber v. University of Alaska,

Anchorage,19 res judicata bars not only relitigation of the  same

cause  of  action,  but  also new claims arising  from  the  same

transactions  as  those  in the first suit.20   When  determining

whether two claims are part of the same cause of action, we  look

to  the transaction out of which the claims arose, not the  legal

theories  asserted.21   We  exercise pragmatism  in  making  this

          determination and consider whether the facts are related in time,

space,  origin,  or  motivation, whether they form  a  convenient

trial unit, and whether their treatment as a unit conforms to the

parties expectations or business understanding or usage.22

          The actions for trademark infringement and breach of an

oral  rental contract are separate and distinct causes of action.

Each action required proof of different facts,

arose  out  of  a  separate and distinct  injury,  and  caused  a

separate  and  distinct harm.  The cause of action for  trademark

infringement arose when the Aldermans began using Iditarods trade

name, Fourth Avenue Theatre, in their trolley tours,23 while  the

cause  of action for unpaid rent arose when the Aldermans  failed

to  pay  rent  as  agreed.  Although both causes of  action  were

precipitated   by   the  breakdown  in  the   parties    business

relationship, either cause of action could have been brought  had

the  factual circumstances underlying the other cause  of  action

never  occurred.  Because the two causes of action arose  out  of

separate  transactions, we find that Iditarods action to  recover

rent was not barred by res judicata.

     B.   The Action Is Not Barred by the Statute of Limitations.
          
          A.   The Aldermans also argue that Iditarods 2002 suit to recover

rent  was  barred  by the statute of limitations.   They  contend

that,  because the cause of action accrued after August 7,  1997,

it was subject to a three-year statute of limitations rather than

the  six-year  period  used  by the superior  court.24   Iditarod

contends  that the cause of action accrued in June or  July  1997

because  the  Aldermans  failed to pay  rent  for  those  months.

Accordingly, they argue that the action is governed by  the  six-

year  statute  of limitations period applicable under  former  AS

09.10.050.  Iditarod argues in the alternative that, even if  the

cause   of  action  was  subject  to  a  three-year  statute   of

limitations,  the  action is saved by Alaskas  statutory  savings

clause.   Because we find that Alaskas statutory  savings  clause

applies,  we need not review the superior courts factual findings

          regarding when the cause of action accrued.

          Alaskas  statutory  savings  clause,  codified  in   AS

09.10.240, provides that, if a judgment on a particular cause  of

action  is  reversed or dismissed on appeal,  and  the  cause  of

action  was originally commenced within the time prescribed,  the

losing party may commence a new action on the same grounds within

one  year of the reversal or dismissal.  Alaska Statute 09.10.240

applies  to  all  actions  that are dismissed  at  the  trial  or

appellate level other than those dismissed on their merits.25

          Iditarods  action to recover rent was originally  filed

as  an amendment to a complaint for trademark infringement in May

1998,  making it timely under either the three-year  or  six-year

statute of limitations.  We did not dismiss the judgment for rent

on  its  merits,  but  because we were  concerned  that  allowing

Iditarod to amend the complaint after the close of evidence might

have  caused  prejudice  to the Aldermans.26   Because  Iditarods

original  action was timely, and because we did  not  vacate  the

judgment  on the merits, we conclude that AS 09.10.240 applies.27

Iditarods second action to recover rent, filed less than one year

after  the  judgment was vacated, was timely under AS  09.10.240.

The action was not barred by the statute of limitations.

     C.   Any Error in Admitting the Prior Sworn Testimony of Francis
          Gallela  Was Harmless.
          
          At the 1999 trial, the Aldermans called Francis Gallela

as  an  expert witness to prove the economic damages suffered  by

the  Aldermans due to Iditarods alleged interference  with  their

business.  At the 2002 trial, Judge Christen allowed Iditarod  to

read  into evidence Gallelas prior sworn testimony that had  been

given  as part of an offer of proof.  In the portion of testimony

that  was  offered  into  evidence, Gallella  stated  that  Caleb

Alderman had told Gallela that the rental agreement required  the

Aldermans  to  provide Iditarod with fifteen  percent  of  Alaska

Guestourss  gross  receipts, a statement  that  contradicted  the

Aldermans  position  at  the  2002 trial.   At  that  trial,  the

Aldermans maintained that their rent agreement called for them to

          pay only fifteen percent of their ticket sales from locations on

the  Gottstein  property,  not fifteen  percent  of  their  gross

revenues.

          The  Aldermans  argue  that the trial  court  erred  in

admitting  Gallelas prior sworn testimony because it was  hearsay

and  did not fall within an exception to the hearsay rule.  Under

Alaska  Evidence Rule 801(c), hearsay is a statement, other  than

one  made  by  the  declarant while testifying at  the  trial  or

hearing,  offered into evidence to prove the truth of the  matter

asserted.   A  statement is not considered hearsay if  it  is  an

admission  by  a  party  and  is offered  against  that  party.28

Iditarod  urges  this  court to hold that when  a  party  puts  a

witness  on the stand to prove a particular fact and the  witness

does so, the witnesss testimony constitutes an adoptive admission

by that party and is therefore not hearsay.

          We  need not reach this issue because, even if Gallelas

testimony  was admitted in error, it was harmless.  The admission

of  evidence,  even if erroneous, is harmless when  there  is  no

reasonable   likelihood  that  the  admitted  evidence   had   an

appreciable  effect on the courts decision.29   When  determining

whether   an  allegedly  erroneous  admission  of  evidence   was

harmless, we do our best to put ourselves in the position of  the

trier of fact.30  In this case, there is no reasonable likelihood

that   admission  of  Gallelas  testimony  would  have   had   an

appreciable effect on a reasonable trier of fact (here, the court

was the trier of fact) because the financial records presented at

the  second  trial,31  the testimony of Robert  Gottstein,32  and

substantial testimony from the Aldermans themselves at the  first

trial all supported the courts decision33 and all were in conflict

with the testimony of the Aldermans at the second trial.

     D.   The Superior Court Erred in Awarding Enhanced Attorneys Fees
          to Iditarod.
          
          The  court awarded Iditarod $18,170 in attorneys  fees,

an  amount  which  represented an enhanced  fee  award  of  fifty

percent  of Iditarods actual attorneys fees.  The court  enhanced

          the award because the Aldermans failed to present new evidence on

the  issue of rent, they rejected Iditarods reasonable settlement

offers,34 and they presented a weak defense.  The Aldermans argue

that this was an abuse of discretion.

          Under  Alaska Rule of Civil Procedure 82(b)(1),  if  an

issue  is contested and goes to trial, a prevailing plaintiff  is

entitled  to  recover  as  attorneys fees  twenty  percent  of  a

judgment up to $25,000.  The trial court has discretion to vary a

fee  award  if it determines that variation is warranted  because

of, among other factors, the attorneys efforts to minimize fees,35

the reasonableness of claims and defenses pursued by each side,36

vexatious or bad faith conduct,37 and any other relevant equitable

factors.38  We reverse the award of attorneys fees because we find

that  the court erred in considering Iditarods offers of judgment

when  awarding  enhanced fees and because the findings  that  the

Aldermans claims were either unreasonable or brought in bad faith

are not supported by the record.

          1.   Iditarods offers of judgment were not relevant under Civil
               Rule 82.
               
          The superior court awarded Iditarod enhanced atttorneys

fees in part based on its finding that Iditarod had attempted  to

minimize its attorneys fees through pre-trial offers of judgment.

On  October  17, 2002 Iditarod offered the Aldermans  and  Alaska

Guestours $900 to settle the case.  The settlement offer was  not

accepted,  and Iditarod subsequently incurred at least $9,000  in

attorneys fees.  The settlement offer did not lead to an award of

attorneys  fees under Rule 68, because the court found  that  the

parties did not set a deadline for initial disclosures, a finding

that Iditarod does not challenge on appeal.

          Although   the  offers  of  judgment  were   reasonable

attempts  by  Iditarod  to minimize the attorneys  fees  of  both

parties,  we  have  consistently held that  it  is  error  for  a

superior  court  to  consider past settlement  negotiations  when

awarding enhanced fees under Rule 82.39   The only method by which

fees  may  be enhanced for failure to accept an offer of judgment

          is found in Civil Rule 68.40  If an offer of judgment fails due to

a  procedural defect, as is the case here, the superior court may

not  then  penalize the offeree by awarding enhanced  fees  under

Rule  82.41   We reverse the award of enhanced fees  because  the

award  was  at  least  partially based  on  Iditarods  offers  of

judgment under Rule 68.42

          2.   The Aldermans defenses were not unreasonable.

          The  superior  court  also  awarded  Iditarod  enhanced

attorneys fees because  it felt that the Aldermans defenses  were

weak.   When a party has taken a legitimate position, it has  not

acted  unreasonably  for the purposes of Rule  82.43   This  case

centered  on  the terms of an oral contract, about which  neither

party  was  able to produce definitive evidence.  Caleb  Alderman

testified that the oral contract was for fifteen percent of sales

generated at the Fourth Avenue Theatre and not fifteen percent of

Alaska  Guestourss gross receipts, although his testimony at  the

first  trial  had  been inconsistent on this  point.   The  prior

testimony of Barbara Alderman, which was read into evidence,  was

somewhat  less  clear but tended to support the  claim  that  the

contract  was  for fifteen percent of sales made at the  theater.

Gottstein  claimed that the contract was for fifteen  percent  of

the gross receipts from the trolley tours.

          Considering  the  conflicting  testimony  presented  at

trial, we cannot say that the Aldermans defense was unreasonable.

The  superior  courts  finding  appears  to  be  based  on  Judge

Shortells  characterization of the Aldermans claims and  defenses

during  the 1999 trial, and does not support enhancement pursuant

to  Rule  82(b)(3)(F),  which requires a finding  that  a  partys

defense was unreasonable.

          3.   There is no factual basis to support a finding that the
               Aldermans acted in bad faith or made misrepresentations to the
               court during the current litigation.
               
          Finally, the court stated that it awarded enhanced fees

because  the Aldermans appealed the 1999 judgment on the  grounds

that  they were not given the opportunity to present new evidence

          but then failed to present any new evidence at the 2002 trial.

This  appears  to  be  another way of saying that  the  Aldermans

appeal  was  brought  in  bad faith or that  the  Aldermans  made

misrepresentations to this court.

          In  the  first appeal, we held that the Aldermans  were

prejudiced when Judge Shortell allowed Iditarod to assert a cause

of  action  for  unpaid rent after the close of evidence.44   The

Aldermans  argued that the late addition of this claim  prevented

them from presenting evidence concerning the terms of the parties

oral rent agreement.45

          At  the  second  trial,  the  Aldermans  submitted  tax

returns for Alaska Guestours for the years 1995-1997, as well  as

assorted  receipts.  The tax returns specified  Alaska  Guestours

gross  receipts  and  rent expenditures  for  each  year.   Caleb

Alderman  testified  that  some of the rent  expenses  on  Alaska

Guestours  tax  returns were related to the company  trolley  and

van.  He also testified that the parties oral agreement specified

that  the Aldermans would pay Iditarod fifteen percent of  ticket

sales  made at the theater and not, as Iditarod claimed,  fifteen

percent  of  all  gross  receipts  generated  from  the  trolley.

Clearly   the   Aldermans  presented  some  new  evidence,   both

testimonial and documentary, at the 2002 trial.

          The  superior court also stated that the Aldermans  may

have acted in bad faith due to evidence that they had delayed the

case by attempting to evade process, an apparent reference to the

Aldermans attempt to avoid Iditarods judgment in the 1999 action.

But  conduct undertaken in bad faith for the purposes of Rule  82

must  relate to conduct during the litigation, and not to actions

taken  during  the  underlying transaction  or  other  litigation

between the parties.46  It was thus inappropriate to consider the

Aldermans alleged attempts to avoid judgment in another cause  of

action.

          We  conclude that the superior court erred in  awarding

Iditarod  enhanced  attorneys fees  and  remand  this  issue  for

          imposition of Rule 82 attorneys fees without enhancement.

     E.   The  Superior  Court  Correctly Calculated  Prejudgment

          Interest.

          A.   The superior court awarded Iditarod prejudgment interest at

a  rate  of  10.5% per annum to accrue from August 1,  1997,  but

excluding  the period during which Iditarod was in possession  of

the  judgment for unpaid rent.  The right to prejudgment interest

in  an  action for breach of contract accrues from  the  date  of

contractual   breach.47   The  purpose  of  awarding  prejudgment

interest is to  compensate [a] plaintiff for the loss of  use  of

the money from the date of injury until the date of judgment.  48

The Aldermans argue that the courts award of prejudgment interest

gave  Iditarod  a  double recovery and that  Iditarods  right  to

interest  accrued after August 1, 1997, claims  which,  if  true,

would  both reduce the amount of interest owed as well as  change

the  rate  at  which  interest would be  calculated.49   For  the

following reasons, we reject these arguments and affirm the award

of prejudgment interest.

          1.   The  award  of prejudgment interest did  not  give
               Iditarod a double recovery.
               
          The  Aldermans  argue  that Judge  Christens  award  of

prejudgment interest for the period of August 1, 1997 to May  10,

2000 granted Iditarod a double recovery because the Aldermans had

already  paid prejudgment interest for that period in  accordance

with  Judge Shortells order.  The Aldermans correctly argue  that

prejudgment  interest may not be awarded to the  extent  that  it

would  give  the  plaintiff a double recovery.50  However,  Judge

Christen  correctly  credited the Aldermans  not  only  with  the

amount  paid on the earlier judgment, but also the interest  that

they  paid on the judgment.  In addition, the Aldermans  did  not

have to pay interest during the period of time that Iditarod  had

possession  of  the judgment.  Thus, Iditarod did not  receive  a

double recovery.

          2.   The Aldermans have waived all other claims concerning the
               computation of prejudgment interest.
               
          The  Aldermans also argue that the superior court erred

          in ruling that Iditarod was entitled to receive prejudgment

interest  beginning on August 1, 1997.  The Aldermans raise  this

issue for the first time on appeal.

          Absent  plain  error, we generally  will  not  consider

issues  raised  for  the  first time on appeal.51   We  may  make

exceptions  for issues that are (1) not dependent on any  new  or

controverted  facts, (2) closely related to the appellants  trial

court  arguments;  and  (3)  could have  been  gleaned  from  the

pleadings.52  Because the Aldermans claim rests on a controverted

fact   the date on which the cause of action accrued  and because

there  was  no  plain error in calculating the  date  from  which

prejudgment  interest  accrued, this argument  has  been  waived.

Finally,  the Aldermans argument that a different statutory  rate

of  interest applies, an issue raised in the Aldermans points  on

appeal  but not argued before the trial court or in their opening

brief before this court, is deemed abandoned.53

V.   CONCLUSION

          We  AFFIRM  the superior courts award of past-due  rent

and prejudgment interest in favor of Iditarod, but we REVERSE the

award of enhanced attorneys fees and

REMAND to the superior court to issue an award of attorneys  fees
in accordance with this opinion.




























                                                       

_______________________________
     1    These facts are taken from Alderman v. Iditarod Props.,
Inc., 32 P.3d 373 (Alaska 2001).

     2     The  Aldermans,  and  their  counsel,  have  variously
spelled   their   name  Alderman  and  Aldeman  throughout   this
litigation.   We  use the former spelling, which represents  that
used in our earlier published opinion in this case.

     3    32 P.3d 373 (Alaska 2001).

     4    Id. at 398.

     5    Id. at 394-97.

     6    The former statute, AS 09.10.050, was amended effective
August 7, 1997 when AS 09.10.053 was enacted.  Ch. 26,  3-4,  SLA
1997.

     7     Alaska Guestours is the name of the Aldermans  trolley
business.

     8     The  amount  owing  for rent was so  low  because  the
Aldermans had previously paid to Iditarod $13,924.05 in rent  and
$1,766.45  in  accrued  interest, and this sum  was  subsequently
deposited with the court pending the outcome of trial.

     9     See State, Dept of Commerce & Econ. Dev., Div. of Ins.
v.  Schnell,  8  P.3d  351, 359 (Alaska 2000)  (determination  of
whether  action  is barred by res judicata is question  of  law);
Jenkins  v. Daniels, 751 P.2d 19, 21 (Alaska 1988) (determination
of which statute of limitations applies is question of law).

     10    Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1031 (Alaska
2002).

     11    Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998).

     12    Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).

     13    Landers v. Municipality of Anchorage, 915 P.2d 614, 616
n.1 (Alaska 1996).

     14     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  380
(Alaska 2001).

     15    Id.

     16    Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).

     17     At  oral argument, Iditarod argued that the Aldermans
waived this argument because it was not listed in their statement
of points on appeal.  However, the Aldermans did raise this claim
before  the  trial court, they fully briefed the  issue  to  this
court,  and  we may effectively address it without  the  need  to
review   untranscribed   portions  of  the   electronic   record.
Accordingly,  we find that the Aldermans failure to  include  the
issue  in  the  statement  of  points  on  appeal  does  not  bar
consideration  of the issue.  See Alaska R. App. P.  204(e)  (The
appellate  court  will  only  consider  points  included  in  the
statement  [of points on which the appellant intends to  rely  in
the  appeal],  and points that the court can address  effectively
without   reviewing  untranscribed  portions  of  the  electronic
record.).   See also Native Vill. of Eklutna v. Bd. of Adjustment
for  Municipality of Anchorage, 995 P.2d 641, 646  (Alaska  2000)
(review  of  issue on appeal was not precluded when all  relevant
portions of electronic record were transcribed, appellant  raised
issue  before  superior court, and issue  was  fully  briefed  on
appeal).

     18     Dixon  v.  Pouncy, 979 P.2d 520,  523  (Alaska  1999)
(quoting Moores Federal Practice 131.10[1][a] (3d ed. 1997)).

     19    936 P.2d 163 (Alaska 1997).

     20    Id. at 166.

     21     Tope  v.  Christianson, 959 P.2d 1240,  1244  (Alaska
1998).

     22    McElron v. Kennedy, 74 P.3d 903, 908 (Alaska 2003); see
also Restatement (Second) of Judgments  24 (1982).

     23     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  379
(Alaska 2001).

     24     For  causes of action accruing on or after August  7,
1997,  the statute of limitations for breach of contract is three
years.   AS  09.10.053.   If the cause of action  accrued  before
August  7, 1997, the statute of limitations is six years.  Former
AS 09.10.050.  See ch. 26,  3-4, SLA 1997.

     25    Smith v. Stratton, 835 P.2d 1162, 1165 (Alaska 1992).

     26    Alderman, 32 P.3d at 395-96.

     27     We read AS 09.10.240 to apply to judgments that  have
been  vacated as well as those that have been dismissed.  As with
an  action that has been dismissed on grounds not related to  its
merits,  when a judgment is vacated it is as if the judgment  had
never  been entered and the parties are put in the same  position
they   were  in  before  the  entry  of   judgment.   See,  e.g.,
Earthmovers of Fairbanks, Inc. v. State, Dept of Transp.  &  Pub.
Facilities, 765 P.2d 1360, 1363 (Alaska 1988) (effect of reversal
is  vacation of that judgment, putting case back in same position
as before judgment).

     28    Alaska R. Evid. 801(d)(2).

     29    Crosby v. Hummell, 63 P.3d 1022, 1028 (Alaska 2003).

     30    See Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000)
(under harmless error test, we will put ourselves in position  of
jury  to  determine if reasonable people would have been affected
by improperly admitted evidence in rendering verdict).

     31     The  evidence showed that the Aldermans paid  fifteen
percent  of  gross revenues for 1995 and 1996,  their  first  two
seasons  of  operation, and the superior court  reasonably  found
that  this strongly supported the conclusion that fifteen percent
of  gross  revenues  reflected the amount that  the  parties  had
agreed upon.

     32     Mr.  Gottstein testified that his agreement with  the
Aldermans  was  that they would pay him fifteen  percent  of  the
gross proceeds of the tour business as rent.

     33     For example, while their testimony at the first trial
was  inconsistent, both Aldermans referred to fifteen percent  of
gross  receipts at least once.  Caleb Alderman testified  at  the
first  trial  that  he paid Gottstein fifteen  percent  of  gross
[receipts].   Barbara Alderman testified that Gottstein  proposed
increasing  the  rent to thirty percent of gross receipts  rather
than  the fifteen percent he had been receiving under their prior
agreement.

     34     Fees were not awarded under Civil Rule 68 because the
parties  did  not  set  a deadline for the  exchange  of  initial
disclosures.  Neither party raises this issue on appeal.

     35    Alaska R. Civ. P. 82(b)(3)(E).

     36    Alaska R. Civ. P. 82(b)(3)(F).

     37    Alaska R. Civ. P. 82(b)(3)(G).

     38    Alaska R. Civ. P. 82(b)(3)(K).

     39    Van Dort v. Culliton, 797 P.2d 642, 645 (Alaska 1990);
Doyle  v. Peabody, 781 P.2d 957, 962 (Alaska 1989); Day v. Moore,
771  P.2d 436, 438-39 (Alaska 1989); Myers v. Snow White Cleaners
& Linen Supply, Inc., 770 P.2d 750, 752-53 (Alaska 1989).

     40    Doyle, 781 P.2d at 962; Day, 771 P.2d at 438-39; Myers,
770 P.2d at 752.

     41    Day, 771 P.2d at 438.

     42     See  Van  Dort, 797 P.2d at 645 (we have consistently
reversed  awards of attorneys fees based in whole or in  part  on
improper consideration of past settlement negotiations).

     43     Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d  595,
605 (Alaska 1999).

     44     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  395
(Alaska 2001).

     45    Id. at 394-95.

     46    Cole v. Bartels, 4 P.3d 956, 961 n.24 (Alaska 2000).

     47     K&K Recycling, Inc. v. Alaska Gold Co., 80 P.3d  702,
724  (Alaska  2003) (prejudgment interest runs  from  date  claim
accrues).

     48     Liimatta  v.  Vest, 45 P.3d 310,  321  (Alaska  2002)
(quoting Am. Natl Watermattress Corp. v. Manville, 642 P.2d 1330,
1343 (Alaska 1982)).

     49     The  former AS 09.30.070, which applies to causes  of
action accruing before August 7, 1997, provided for a 10.5%  rate
of  interest.   Under  the  current AS 09.30.070,  the  statutory
interest  rate is three percentage points above the 12th  Federal
Reserve District discount rate in effect on January 2 of the year
judgment is entered.  See ch. 26,  18, SLA 1997.

     50     See,  e.g,  Liimatta, 45 P.3d at  321  (holding  that
prejudgment  interest cannot be awarded if  it  would  amount  to
double recovery).

     51     Hoffman  Constr. Co. of Alaska v. U.S. Fabrication  &
Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).

     52    Id.

     53     See  In  the Matter of H.C., 956 P.2d  477,  480  n.7
(Alaska 1998) (citing Kodiak Elec. Assn, Inc. v. DeLaval Turbine,
Inc.,  694  P.2d  150, 153 n.4 (Alaska 1984)  (issues  raised  in
partys statement of points on appeal, but not adequately briefed,
are considered abandoned)).