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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mullins v. Oates (02/29/2008) sp-6233

Mullins v. Oates (02/29/2008) sp-6233, 179 P3d 930

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MARGRET A. MULLINS, )
) Supreme Court No. S- 11623
Appellant, )
) Superior Court No.
v. ) 4FA-02-00824 Civil
)
ALICE OATES, ) O P I N I O N
)
Appellee. ) No. 6233 February 29, 2008
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:  Margret  A.  Mullins,  pro  se,
          Delta   Junction,  Appellant.    Kenneth   P.
          Ringstad,    Paskvan   &   Ringstad,    P.C.,
          Fairbanks, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          Margret  Mullins  appeals  a  final  judgment  of   the
superior court terminating her rights and interests in three lots
of  real property located in Tok.  Because the superior court did
not  err  in  enforcing  the settlement  agreement  that  Mullins
ultimately breached, we affirm the superior courts judgment.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On  November 17, 1997, Margret Mullins contracted  with
Alice  Oates to buy three lots of real property located in  Tok.1
          The initial contract for sale provided that the purchase price
for  these properties was $170,000; the down payment was  $5,000;
the  monthly  payment was $600; interest on the  principal  would
accrue at a rate of $6,000 per year or five percent, whichever is
less;  Mullins  would  maintain a minimum  of  $60,000  worth  of
insurance  on a commercial log structure located on  one  of  the
lots; and the price of this insurance would not be deducted  from
the  payments  Mullins made to Oates.  These terms were  to  last
fifteen  years, at the end of which Mullins would pay  Oates  any
remaining  balance  of principal and interest.   In  addition  to
establishing  this  particular  price  and  payment  scheme,  the
initial  contract for sale also established a three-stage  method
for  transferring title to Mullins.  Under the prescribed method,
title  to  one lot would transfer to Mullins after she  had  paid
$30,000 in principal; title to a second lot would transfer  after
she  had  paid an additional $50,000; and title to the final  lot
would  transfer after she had paid the remaining amount. Finally,
the  initial contract for sale established the consequences of  a
breach by Mullins:
          Should  buyer default on this agreement,  all
          title and interest unto any Lots which remain
          unpaid  at  the time shall revert to  Seller,
          and  all previous interest/principal payments
          made by Buyer unto Seller under this contract
          shall  be  deemed  earned by Seller,  thereby
          completely  satisfying Sellers  damages  from
          Buyers Default.
          
Upon   execution,  the  initial  contract  for  sale  immediately
transferred full use and possession of all three lots to Mullins,
with  all rental and other revenues from this date forward  being
the  property and possession of the buyer.  Mullins was to  begin
monthly  payments  to Oates thirty days from  the  date  of  [the
contract].2
          On  June 15, 1998, Mullins and Oates signed an Addendum
to  the  Contract of Sale, the purpose of which was to set  forth
additional  items  of  agreement which  were  overlooked  in  the
initial contract.  In this addendum, Mullins and Oates set  forth
two  additional items of agreement, both of which appear to  have
been  intended  to clarify past events and unwritten  agreements.
First,  the  addendum retroactively clarified  that  Mullins  and
Oates  had  agreed to delay Mullinss first monthly payment  until
January 15, with no interest accruing for that free rent period.3
The  addendum explained that this delay in payment was  necessary
because  Oates  had  without the knowledge or assent  of  Mullins
given  the business renting space in the commercial log structure
permission  to forgo paying rent until January 1, 1998.   Second,
the  addendum  retroactively clarified that the  original  asking
price for the land had been $160,000 but that Mullins had offered
and  Oates had accepted an additional $10,000 in exchange  for  a
guarantee  that seller would work with buyer as and when  needed,
giving   buyer  leeway  without  harm  to  buyers  credit,   when
necessary, concerning the monthly payments.
          On   December  11,  2001,  Oates,  acting  through  her
          attorney, sent a letter to Mullins, asserting that Mullins had
defaulted  on  the  contract by failing  to  make  payments4  and
failing  to provide proof of insurance.5  On December  28,  2001,
Oates, again acting through her attorney, sent a follow up letter
to  Mullins.   In this letter, Oates noted that she had  not  yet
received  a  response from Mullins and threatened to begin  legal
action  to  terminate Mullinss rights under  the  contract  if  a
response was not received within ten days.  Mullins asserts  that
she  was away from Tok when these letters were sent and that  her
response  was  therefore necessarily delayed.   Mullins  insists,
however,  that she did eventually mail a response on  January  7,
2002.  According to Oates, Mullinss response was never received.
     B.   Proceedings
          On  April  9, 2002, Oates filed a complaint in superior
court  seeking  an  order and judgement declaring  that  Mullinss
rights, title and interests in and to the . . . real property are
foreclosed  and  title to the . . . real property  is  vested  in
[Oates] free and clear of any right, title and interest [Mullins]
may  have.   Mullins was served on June 17, but failed to  timely
appear,  file  an  answer to the complaint, or  otherwise  defend
herself.   On  July 15 Oates filed an application  for  entry  of
default against Mullins for her failure to plead in or defend the
[c]omplaint.  Two days later, the court granted this  application
and entered a default judgment against Mullins.
          On  August 15, 2002, Mullins filed a pro se pleading in
which  she moved the superior court to (1) set aside the  default
judgment; (2) grant her extra time to prepare her pleadings;  (3)
allow  her  to  file  her pleadings by fax;  (4)  dismiss  Oatess
complaint  against  her; and (5) award punitive  damages  against
Oates  for  frivolously using the court as a means of  defrauding
and  harassing  her.   On  August 28 the superior  court  granted
Mullinss  motion to set aside the default but did not decide  her
remaining  motions, other than to rule that she  could  not  file
pleadings by fax.  On October 8, 2002, the superior court  denied
Mullinss  motions to dismiss the complaint and to award  punitive
damages.   The  superior  court then  entered  a  pretrial  order
setting  trial  for the week of May 26, 2003.   On  February  19,
2003,  the superior court ordered a settlement conference  to  be
held before Standing Master Katherine Bachelder, as mediator.6
          As ordered, a settlement conference took place on April
4,  2003.   During the settlement negotiations, Mullins  and  her
husband and Oates and her attorney were in separate rooms,  while
Master  Bachelder  went back and forth between the  two  parties.
After  several  hours of off-the-record settlement  negotiations,
both  Mullins  and Oates went on the record, in open  court,  and
orally  agreed to the terms of a settlement.  The basic  contours
of  the  settlement  were  as follows:  (1)  Mullins  would  make
payments to Oates in the amount of $600 per month for the  months
of  November through May and $1,200 per month for the  months  of
June through October; (2) Mullins would pay an additional $600 to
Oates on the first of each month for ten months in order to  make
up  for  back payments; (3) payments would be made into an escrow
account and escrow fees would be split between Mullins and Oates;
(4)  the  interest  rate  would be five  percent  of  the  unpaid
          principal balance; (5) after ten years, a balloon payment would
come due for the remaining amount of the principal; and (6) Oates
would not enter onto Mullinss property or slander Mullins.
          On  April 7, 2003, the superior court entered a  notice
of intent to dismiss the case because the parties [had] reach[ed]
a settlement agreement which was placed on the court record.  The
superior  court noted that Mullins and Oates had  until  May  15,
2003, to file a good cause objection to the suit being dismissed.
On  May  14 Oates requested that the court not dismiss  the  case
until  final settlement documents had been executed.   Five  days
later, Mullins also requested that the court not dismiss the case
and  instead vacate the settlement agreement and reset  the  case
for  trial. In her request, Mullins maintained that she had  been
coerced  into  accepting the terms of the  settlement  agreement.
According  to  Mullins, Master Bachelder had erroneously  advised
her that she would lose her property and would be responsible for
Oatess  attorneys fees if the case proceeded to  trial  and  that
this  advice, because she accepted it as true, left her  with  no
other choice but to accept the terms of the settlement agreement.
Finding  good cause, the superior court declined to  dismiss  the
case at that time.
          On  August 13, 2003, the superior court issued an order
denying  Mullinss  motion to vacate the settlement  and  granting
Oatess  motion to enforce the settlement. According to the order,
the  superior courts review of the settlement on the  record  had
convinced it that Mullins freely and voluntarily entered into the
settlement  agreement.  The superior court listed  the  essential
terms  of  the  April 4, 2003 settlement agreement in  its  order
granting the motion to enforce the settlement.
          On  September  22,  2003,  Oates,  acting  through  her
attorney,  mailed Mullins two original settlement agreements,  an
original  deed  of  trust, and an original  promissory  note  for
review  and  signature.  Mullins apparently refused  to  sign  or
return  the  documents.  Instead, over the  next  month,  Mullins
filed  a  number of motions, including a request on  October  16,
2003, that the court reconsider its order denying Mullinss motion
to set aside the settlement agreement.
          On   November  12,  2003,  Oates,  acting  through  her
attorney, sent another letter to Mullins.  In this letter,  Oates
noted   that,  under  Civil  Rule  77(k)(4),  if  a  motion   for
reconsideration is not ruled upon by the Court within 30 days  of
the  date of the filing of the motion, the motion shall be  taken
as  denied.  Oates then pointed out that it had been thirty  days
since  Mullins filed her motion for reconsideration and the court
had  not  yet  ruled  upon  it.   Consequently,  Oates  asserted,
Mullinss  motion had been denied.  Oates requested  that  Mullins
execute  the  settlement agreement and pay all of  her  past  due
payments  immediately. Failure to do so, Oates  concluded,  would
result in a material breach of the settlement agreement.
          On  November  26, 2003, after her original  motion  for
reconsideration had been denied by operation of  Alaska  Rule  of
Civil Procedure 77(k)(4), Mullins filed a document entitled  Time
is  of  the Essence Motion to Vacate Settlement Agreement Because
It Has Now Been Rejected By Both Parties.  In this motion Mullins
argued  for the first time that the promissory note and  deed  of
trust  that  Oates  had  sent to her  for  review  and  signature
contained a number of terms never mentioned or agreed to  at  the
settlement conference.  Mullins then went on to assert  that  the
addition of these terms represented a rejection of the settlement
agreement  and  converted the promissory note and deed  of  trust
into a counteroffer  a counteroffer that she claimed she was  now
free  to  reject.   Mullins  asked  the  court  to  declare   the
settlement agreement null and void and to stay execution  of  the
agreement until her motion could be heard or appeal taken.
          On  January  14,  2004, the superior court  entered  an
order in response to several of Mullinss motions.  In this order,
the  superior  court  denied Mullinss motion  to  reconsider  its
earlier order refusing to set aside the settlement agreement.
          On  March  1,  2004,  Oates filed a motion  to  declare
Mullinss  title and interests terminated and requested  an  order
requiring Mullins to vacate the property.  On July 23, 2004,  the
superior  court  entered an order once again  rejecting  Mullinss
contention  that her acceptance of the settlement  agreement  had
been the product of coercion, duress, or misrepresentation.   The
court  also rejected Mullinss claim that the promissory note  and
deed  of trust mailed to her for review and signature represented
a counteroffer.  According to the superior court, these documents
did  not  contain  terms  that  meaningfully  deviated  from  the
settlement agreement.  The court concluded by noting that Mullins
had  exhausted her remedies in the superior court  and  that  her
proper recourse now was to file an appeal.  On September 3, 2004,
the superior court issued a final judgment against Mullins.  This
final  judgment terminated Mullinss rights and interests  in  the
property.  Mullins now appeals.
III. STANDARD OF REVIEW
          We  review  a  superior courts decision  to  enforce  a
settlement   agreement  under  the  clear  abuse  of   discretion
standard.7  We review questions of constitutional law  de  novo.8
We may affirm a judgment on any grounds that the record supports,
even grounds not relied on by the superior court.9
IV.  DISCUSSION
          Mullinss  primary  claims  fall  within  three  general
categories: (1) claims that Mullinss acceptance of the settlement
agreement    was   the   product   of   coercion,   duress,    or
misrepresentation; (2) claims that the settlement documents Oates
sent  to Mullins included a number of terms not previously agreed
to at the settlement conference; and (3) claims that the superior
court violated Mullinss constitutional rights.10  We address each
of these categories of claims in turn.
     A.   The  Superior  Court Did Not Err in Rejecting  Mullinss
          Claims of Coercion, Duress, or Misrepresentation.
          
          Mullins argues that her acceptance of the April 4, 2003
settlement  agreement  was the product of coercion,  duress,  and
misrepresentation.  According to Mullins, the  master  overseeing
the  settlement conference left her with no choice but to  accept
the terms of the settlement agreement by erroneously advising her
that  she  would  secure  less  favorable  terms  at  trial.   An
          affidavit signed by Mullinss husband and submitted to the
superior  court characterized the masters advice in the following
manner:
               According  to Master [Bachelder],  there
          were  only  three  possible outcomes  to  the
          case:
          
               The  judge  could determine,  at  trial,
          that  the  contract was terminated;  in  such
          case, the Defendant would be responsible  for
          the Plaintiff[]s attorneys fees.
          
               The judge could reformulate the contract
          at  trial, based on the equity established by
          Mrs.  Mullins during the renovations  to  the
          property.    However,  that   process   would
          involve  contract  changes that  would  favor
          Mrs. Oates, to provide the consideration  for
          the reformulation.  Again, Defendant would be
          responsible  for  the  Plaintiffs   attorneys
          fees.
          
               Or,   the  parties  could  negotiate   a
          settlement  that would avoid  termination  of
          the contract.
          
          The   superior  court  rejected  Mullinss   claims   of
coercion, duress, and misrepresentation at length and on at least
two  occasions.  On the first occasion, the superior court  noted
that it had reviewed the portions of the settlement that had been
placed  on  the  record  and had found no evidence  of  coercion,
duress, or mistake:
          Master  Bachelder stated at the beginning  of
          the  hearing  that if Mullins disagreed  with
          something, she needed to let the court  know.
          The   tape   also  indicated   that   Mullins
          understood the terms and their meaning.   She
          had the opportunity to object to the terms of
          the  settlement  agreement  as  well  as  the
          settlement in its entirety.  She participated
          in  clarifying terms of the settlement on the
          record.
          
The  superior  court also noted that Mullinss  vague  accusations
that  Master  Bachelder told her she would lose were insufficient
to  establish any of the elements of duress or misrepresentation.
Accordingly,  the court held that Mullins freely and  voluntarily
entered into the settlement agreement.
          When  the  superior court rejected Mullinss  claims  of
coercion, duress, and misrepresentation for a second time, it did
so on the grounds that Mullins [had] fail[ed] to state how Master
Bachelder  misrepresented the contract and Alaska law.  According
to the court:
          Mullins  merely  states  that  in  settlement
          negotiations  Master  Bachelder  offered  her
          three alternatives: (1) defendant could go to
          trial, the judge would determine an incurable
          breach  of contract, and defendant  would  be
          responsible   for   attorney[s]   fees;   (2)
          defendant could go to trial to have  a  judge
          reformulate the contract under principles  of
          equity,  defendant would be  responsible  for
          additional   consideration  and   attorney[s]
          fees;  or  (3) defendant could enter  into  a
          settlement  agreement.  It  is  unclear  from
          Mullins[s]  motion  which  part   of   Master
          Bachelders list of alternatives misrepresents
          the contract or the law.
          
The  superior court reasoned that because the masters advice  had
accurately reflected the contract and the law, it could not  have
resulted in any sort of coercion, duress, or misrepresentation.
          As  we  have noted on several occasions, [t]here  is  a
strong  public  policy in favor of the settlement of  disputes.11
Settlements and settlement hearings facilitate communication  and
compromise; they encourage litigants to voluntarily resolve their
disputes;  and  they  simplify,  shorten  and  settle  litigation
without  taking  up  valuable  court  resources.12   Accordingly,
private settlements and stipulations . . . are to be favored  and
should  not  be  lightly  set aside.13  Nevertheless,  settlement
agreements  are,  at base, merely a species of contract  and  are
therefore   binding   only  if  they  meet  minimal   contractual
requirements.14  In order to meet these requirements,  settlement
agreements  must be entered into voluntarily and knowingly;  they
cannot be the product of coercion, duress, or misrepresentation.15
          With  these  principles  in  mind,  we  turn  first  to
Mullinss  claims  of coercion and duress.  As we have  previously
explained, [d]uress generally requires a threat that arouses such
a  fear  as  to  preclude a party from exercising free  will  and
judgment.  . . . Coercion, though not synonymous with duress,  is
similar and implies compulsion or constraint.16
          In the case at hand, the record simply does not support
Mullinss  claims that her free will was overborne by the  masters
actions.   First,  the settlement conference  lasted  over  three
hours.  This suggests that a great deal of time was dedicated  to
negotiating  an  agreement that was acceptable to  both  parties.
Second,  the superior courts review of the settlement establishes
that  Mullins  agreed  to the terms of the settlement  that  were
placed  on  the  record after actively negotiating  those  terms.
During  the placement of the settlement on the record, the master
instructed Mullins to object if she disagreed with the  terms  of
the   settlement.17    Mullins  did  not  object,   but   instead
affirmatively participated in clarifying and defining several  of
the settlements terms, including the date that payments were due,
who would be responsible for escrow fees, and the number of deeds
that  needed  to be drawn up.  Mullins even demanded  that  Oates
agree  to  not  enter onto her property or slander  her  again.18
Under  our  case  law,  these observations strongly  support  the
superior   courts  conclusion  that  Mullins  entered  into   the
agreement voluntarily and of her own free will.19
          At   base,  Mullinss  argument  amounts  merely  to   a
complaint that Master Bachelder offered an assessment of the case
that  cast the option of agreeing to the settlement in a positive
light.   But  it was not improper for Master Bachelder  to  offer
such  an assessment.  When a mediator attempts to aid a party  in
reaching a settlement agreement, he or she may legitimately adopt
a  number of different styles of interaction.  A mediator who  is
conducting  a  settlement conference may opt to  remain  entirely
neutral and express no opinion about the relative merits  of  the
parties  claims.  On the other hand, as one state  supreme  court
has  noted,  a  settlement judge also acts within the  bounds  of
propriety when the judge offers an assessment of a case as he  or
she  understands it and recommends a settlement.20  Indeed,  were
mediators required to remain neutral or only provide the  parties
with  positive assessments of the relative merits of their cases,
it  is  likely  that  settlements would be  reached  less  often.
Stated  another  way,  a mediators assessment,  even  a  negative
assessment, can at times be beneficial to the parties as they try
to reach a settlement agreement.
          Given   these  considerations,  as  well  as   Mullinss
agreement  to  the  settlement  in  open  court  and  her  active
participation at the settlement conference, we conclude that  the
superior  court did not err when it rejected Mullinss  claims  of
coercion and duress.
          We turn now to Mullinss claim of misrepresentation.  As
we  have  previously  explained,  a  claim  of  misrepresentation
requires proof of four separate elements:  (1) that there  was  a
misrepresentation,  (2)  which was fraudulent  or  material,  (3)
which induced the party to enter the contract, and (4) upon which
the party was justified in relying.21
          According to Mullins, the master advised her  of  three
legal alternatives:  (1) go to trial, have the judge determine an
incurable  breach, and be responsible for Oatess attorneys  fees;
(2)  go  to trial, have the judge reformulate the contract  in  a
manner  that provided additional consideration to Oates,  and  be
responsible for Oatess attorneys fees; or (3) reach a  settlement
agreement.  We agree with the superior court that none  of  these
alternatives    represented    a    material    or     fraudulent
misrepresentation  of  the law and conclude  therefore  that  the
superior  court  did not err when it rejected Mullinss  claim  of
misrepresentation.
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Rejecting Mullinss Claim of a Counteroffer.
          
          Mullins  argues  that the deed of trust and  promissory
note  that Oates mailed to her for review and signature contained
a  number of terms never mentioned or agreed to at the settlement
conference.   Specifically, Mullins maintains that the  documents
contained  the following changes and additions:  It  omitted  the
incremental title transfer, contained an unconscionable insurance
provision,  made  the  balloon payment due in  2003,  overcharged
Mullins  on  its  calculation of the contracts  balance,  charged
retroactive  insurance,  and more.   According  to  Mullins,  the
addition of these terms represented a rejection of the settlement
          agreement by Oates and converted the promissory note and deed of
trust  into a counteroffer  a counteroffer that she was  free  to
reject under basic contract law.
          The  superior  court  addressed  a  majority  of  these
alleged  changes  at  length22 and concluded  that  none  of  the
settlement   documents  contained  any  terms  that  meaningfully
deviated  from  the  settlement  agreement.   According  to   the
superior court, every allegedly changed or added term was  either
(1)  not actually changed or added, (2) nothing more than a basic
clause[]  commonly  found  in contracts,  or  (3)  insignificant.
Consequently, the superior court rejected Mullinss argument.23
          A review of the settlement documents reveals that Oates
did  in  fact  add  at  least one term not  agreed  upon  in  the
settlement  conference.   The settlement  documents  proposed  an
annual  interest rate of five percent per year and this  interest
rate  was effectively higher than the interest rate specified  in
the  original contract for sale.  Although both parties generally
agreed to this increase in interest at the settlement conference,
the  settlement  documents appear to go  further  than  what  was
agreed to at the settlement conference and attempt to apply  this
increased  rate to interest due and unpaid from August 12,  2002.
In  other  words, the settlement documents attempt to  apply  the
increased   rate   to  interest  that  accrued   prior   to   the
restructuring  of  the contract at the April 4,  2003  settlement
conference.  Apparently, this retroactive increase in the  amount
that  Mullins owed to Oates was never discussed or agreed  to  by
the  parties, and, thus, Oates should not have added  it  to  the
settlement documents.  We have previously condemned these sort of
unannounced  additions  to  settlement agreements  as  inherently
deceptive  and wrongful, and we do so again today.24  Such  terms
are void.
          However,  although  Oates  added  at  least  one   non-
negotiated  term to the settlement documents, this term  did  not
convert  the  settlement documents into a  counteroffer.   As  we
noted  in  Murphy v. Murphy, when a stipulation is recognized  in
open  court  .  .  . and filed with the clerk, and  there  is  no
dispute  as  to  the  material  terms  of  the  settlement,   the
stipulation  is enforceable.25  In other words, both Mullins  and
Oates  were  bound to the terms of the settlement agreement  that
they reached and orally agreed to on the record on April 4, 2004.
Under standard contract law, Oates was no more able to change the
terms  of  the  settlement agreement or to proffer a counteroffer
than Mullins.26  The settlement  as originally articulated at the
settlement  conference   remained in effect  despite  the  flawed
attempt to insert a new term into the final settlement documents.27
          Judge  Niesje  J. Steinkrugers August  13,  2003  order
granted  Oatess motion to enforce the settlement and set out  the
basic  terms  of the settlement agreed to by the parties  on  the
record  during  their  April 4, 2003 settlement  conference.   On
September  22, 2003, Oates sent Mullins the settlement documents.
Mullins then filed an untimely motion for reconsideration of  the
order  to enforce the settlement on October 20, 2003.  The motion
for  reconsideration made no mention of the non-negotiated terms.
Mullinss  October 20 motion for reconsideration had, by  November
          19, been denied by operation of Alaska Rule of Civil Procedure
77(k)(4).28
          Seven days later, on November 26, 2003, Mullins filed a
motion  asserting  that  time is of the essence  and  seeking  to
vacate  the  settlement, in which she claimed for the first  time
that  the  settlement  documents included  non-negotiated  terms.
Mullins  was  well  within  her rights  to  refuse  to  sign  the
settlement  documents until the error was corrected and  to  seek
assistance  from the courts in getting the error corrected.   But
both  Mullins  and Oates were obligated to abide by the  original
negotiated  settlement agreement that was placed on  the  record,
particularly since the material terms of the settlement had  been
set  out by the trial court in its order of August 13, 2003,  and
were not affected by the inclusion of non-negotiated terms in the
settlement documents.
          Under  the  oral  agreement entered at  the  settlement
conference,  which was set out in detail by Judge Steinkruger  in
her August 13, 2003 ruling, Mullinss immediate obligation was  to
resume  payments  to Oates.  She was to pay $1,200  monthly  from
June  to October and $600 monthly from November to May, with  ten
additional  $600 payments for the first ten months to  compensate
for  back  payments.  At the settlement conference,  the  parties
agreed  that  these obligations would begin as of  June  1  (with
payments  due on the first and eighteenth of the month).   Oates,
through  counsel,  communicated  with  Mullins  twice  after  the
settlement agreement about her late monthly obligations.   First,
on  September  22,  2003, Oates wrote in a cover  letter  to  the
settlement  documents that Mullins owed $6,000 total in  payments
from  June   September and that [a]n escrow is being  set  up  at
Wells  Fargo.   Please make all future payments at this  account.
Second,  on  November  12, 2003, Oates claimed  in  a  letter  to
Mullins  that  she was $8,600 in arrears and requested  immediate
payment.
          Although the settlement documents applied the increased
interest  rate  retroactively to August 12, 2002,  affecting  the
total amount Mullins would owe over the life of the contract, the
inclusion  of  this non-negotiated term did not  affect  Mullinss
immediate  obligation, which was to begin fixed monthly  payments
after June 1, 2003.29
          In  sum  then,  although Mullins was not  obligated  to
abide  by  any term that Oates added to the settlement documents,
she was obligated to abide by the terms negotiated and agreed  to
at  the  settlement  conference.  Mullins failed  to  do  so  and
ultimately materially breached the settlement agreement.30
     C.   Mullinss Constitutional Rights Were Not Violated.
          Finally,  Mullins  advances a number of  constitutional
challenges,  none of which has any merit.  First, Mullins  claims
that  the  superior court violated her rights to equal protection
and due process by discriminating against her on the basis of age
and  religion.  The only evidence she offers in support  of  this
claim is her own unsupported observation that Oatess attorney . .
. mentioned [Oatess] age at the very top of almost every pleading
he  .  . . filed.  However, this observation, even if true, calls
into  question  not  the  superior court,  but  Oatess  attorney.
Attorneys regularly paint their clients in a sympathetic  manner.
This is not a violation of any right.
          Second,  Mullins  claims that the  superior  court  was
biased against her and that this bias represented a violation  of
her  rights  to  equal protection and due process.   The  primary
evidence  Mullins  offers in support of this claim  is  that  the
superior  court  consistently ruled against her motions.   Absent
more,  this  evidence tends only to establish that  the  superior
court  was  not  persuaded by Mullinss  argument.   It  does  not
establish a violation of Mullinss constitutional rights.
          Third,  Mullins claims that the superior court violated
her  right  to  due process when it denied her motion  to  compel
Oates  to answer her interrogatories. However, the superior court
properly  denied this motion since the settlement  agreement  had
already been reached.
          Fourth, Mullins claims that the superior court violated
her rights to equal protection and due process when it denied her
motion to be allowed to fax her pleadings from her home in Tok to
the  courthouse in Fairbanks.  According to Mullins,  the  postal
delivery times between Tok and Fairbanks are so long that she was
unable to file her motions in a timely fashion without either (1)
mailing  her  motions well in advance of the filing date  or  (2)
driving  her motions to Fairbanks.  However, it does  not  appear
that the superior court ever rejected any of Mullinss filings  as
untimely.   As  such, Mullins was not denied equal protection  or
due process of law.
          Finally,  Mullins  claims that lawyers  in  Alaska  are
forced to take up residence in urban settings because they cannot
file  pleadings  via  fax or email.  This, she  argues,  violates
rural  Alaskans constitutional rights by depriving them  of  easy
access  to local counsel.  However, this constitutional challenge
does  not appear to have been raised below and, given its  scope,
was  not adequately briefed on appeal.  The argument is therefore
waived.31
V.   CONCLUSION
          For  the reasons detailed above, we AFFIRM the judgment
of the superior court.
_______________________________
     1     The  initial  contract  for sale  described  the  real
property in the following manner:

          Lots  47B,  47C, 47E3B of the SUBDIVISION  OF
          GOVT  LOTS 3 and 47, WITHIN SECTION 20, T18N,
          R13E,  COPPER RIVER MERIDIAN, ALASKA  RECORDS
          OF  THE  FAIRBANKS RECORDING DISTRICT, FOURTH
          JUDICIAL DISTRICT, STATE OF ALASKA . . . .
          
     2    Mullins and Oates disagree over who drafted the initial
contract  for sale.  According to Mullins, she and Oates  drafted
the contract in concert.  According to Oates, Mullins drafted the
contract by herself.

     3     The  addendum states that under the original contract,
Mullins  was obligated to begin monthly payments on November  15,
1997.   However, the initial contract for sale was dated November
17,  1997  and provided that monthly payments would begin  thirty
days from the date of the contract.

     4     According  to  Oates, Mullinss payments  for  October,
November, and December were all past due.

     5     According  to Oates, [i]mplicit in . . .  a  provision
[requiring a buyer to maintain insurance] is the requirement that
the  seller  be provided proof of insurance and be  named  as  an
additional named insured.

     6     Alaska Rule of Civil Procedure 100(i)(3) provides that
the court may order a settlement conference on its own motion.

     7    Barber v. Barber, 837 P.2d 714, 716 n.2 (Alaska 1992).

     8     Evans  ex  rel.  Kutch v. State, 56  P.3d  1046,  1049
(Alaska 2002).

     9     Van  Sickle v. McGraw, 134 P.3d 338, 341 n.10  (Alaska
2006).

     10     In  addition  to  these three general  categories  of
claims,  Mullins also advances a number of claims  that  have  no
basis in law or fact.  First, Mullins argues that Oatess original
filing  of  the lawsuit was somehow improper, claiming  that  the
filing  of the lawsuit represented a breach of contract  and  was
part of a bait and switch fraud.  However, this argument goes  to
the merits of the original lawsuit and the time to raise such  an
argument   expired  when  Mullins  entered  into  the  settlement
agreement.  Second, Mullins argues that the settlement  agreement
should  be  set  aside because it did not provide  her  with  any
consideration.    However,   Mullins   did   in   fact    receive
consideration  in  the form of Oatess promise  to  abide  by  the
settlement  agreement instead of pursuing  the  lawsuit.   Third,
Mullins  argues that Oates failed to establish an escrow  account
as  required  by the settlement agreement and that  this  failure
represented a breach of contract that somehow relieved Mullins of
her  obligation to make monthly payments.  However, even assuming
that  Oates did in fact fail to establish an escrow account, this
failure  did  not represent a material breach of  the  settlement
agreement  and  therefore  did  not excuse  Mullinss  contractual
obligations.   Moreover, even a material breach  would  not  have
allowed  Mullins to both retain possession of the  real  property
and  avoid making payments.  Finally, Mullins argues that  Master
Bachelder  was  not  an  attorney.  This, however,  is  factually
incorrect.   We  take judicial notice of the fact that  Katherine
Bachelder is a member of the Alaska Bar.

     11    Municipality of Anchorage v. Schneider, 685 P.2d 94, 98
(Alaska  1984);  see also Murphy v. Murphy,  812  P.2d  960,  965
(Alaska 1991).

     12    Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104,
106 (Alaska 1977).

     13     DeSalva  v.  Bryant, 42 P.3d 525, 528  (Alaska  2002)
(quoting Henash v. Ipalook, 985 P.2d 442, 450 (Alaska 1999)).

     14    Rice v. Denley, 944 P.2d 497, 499 n.4 (Alaska 1997).

     15    Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593,
597   (Alaska  2004)  (noting  that  settlement  agreements   are
susceptible to attack for mistake, fraud, misrepresentation,  and
duress).

     16    Crane v. Crane, 986 P.2d 881, 887 (1999).

     17     The master told Mullins, So listen to what he [Oatess
attorney]  says, and then if theres something you disagree  with,
then well ask you that.

     18     Based  upon the audio recording, it is  not  entirely
clear  whether these terms had been agreed to during the extended
negotiations or whether they were raised for the first time  when
the settlement was placed on the record.  Either way, the evident
firmness  with  which  Mullins demanded these  terms  belies  her
claims of coercion and duress.

     19    See, e.g., Pavek v. Curran, 754 P.2d 1125, 1127 (Alaska
1988) (noting it was proper to conclude that a party was bound by
a  settlement  agreement  when that  party  was  present  at  the
hearing, made no objection to the terms of the agreement, and did
not  in  any  way  indicate  that  she  did  not  understand  the
settlement);  see also Ford v. Ford, 69 P.3d 1258,  1264  (Alaska
2003)  (noting that it was proper to conclude that  a  party  was
bound by a settlement because that party actively participated in
the settlement discussions).

     20     Assoc.  Fin. Servs. Co. of Hawaii, Inc. v. Mijo,  950
P.2d   1219   (Hawaii   1998)  (internal   quotations   omitted).
Similarly,   the  Alaska  Judicial  Council  has  explained   the
following:

          The  mediators  role can take various  forms.
          Some  mediators  favor a facilitative  style,
          encouraging  parties to  generate  their  own
          settlement   options  and  seldom  suggesting
          settlement  terms.  At the other end  of  the
          spectrum  are evaluative mediators, who  will
          propose settlement options, assess the merits
          of  claims  or defenses, predict  the  likely
          outcome  in court and try to persuade parties
          to  make concessions.  Some mediators can use
          both  facilitative and evaluative techniques,
          depending on what the parties want  and  what
          the situation requires.
          
Alaska   Judicial   Council,   Mediation,   Alternative   Dispute
Resolution  (ADR)  and  the  Alaska Court  System  (1999)  at  7,
available at http://www.ajc.state.ak.us/reports/medguide99.pdf.

     21     Bering Straits Native Corp. v. Birklid, 739 P.2d 767,
768 (Alaska 1987).

     22    The superior court did not address Mullinss claim that
the settlement documents charged her retroactive insurance.

     23      Mullins  contends  that  the  settlement   documents
submitted by Oates to the superior court and used by the superior
court  in  evaluating Mullinss argument differ from the documents
that  Oates originally mailed to Mullins.  However, it is unclear
in  what  way  Mullins  believes  the  settlement  documents  she
received differ from those submitted to the court.

     24     Adams  v. Adams, 89 P.3d 743, 749 (Alaska 2004);  see
also   Pierce  v.  Pierce,  949  P.2d  498,  500  (Alaska   1997)
(invalidating a term that was added to a document  by  one  party
without giving notice to the other party).

     25    812 P.2d 960, 965 (Alaska 1991) (explaining our holding
in  Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104 (Alaska
1977)).

     26     See  1  Joseph M. Perillo, Corbin on Contracts   3.31
(1993)  (noting  [a]n exact and unconditional  acceptance  of  an
offer  is not afterwards turned into a conditional acceptance  so
as  to  invalidate  the contract . . . by one partys  attempt  to
alter the terms of the contract in some respect).

     27    See id.  2.9 (noting that when parties intend a writing
to  merely  memorialize a prior contract, the contract  is  valid
even though they try and fail to agree upon the form and terms of
the memorial).

     28    Under Alaska Rule of Civil Procedure 77(k)(4),

          [i]f  the motion for reconsideration has  not
          been  ruled upon by the court within 30  days
          from the date of the filing of the motion, or
          within  30  days of the date of filing  of  a
          response requested by the court, whichever is
          later, the motion shall be taken as denied.
          
The  trial  court also elected to deny this motion  in  an  order
dated January 14, 2004.

     29     Mullins  claims  that  no  escrow  account  was  ever
established.  Oates does not address this argument and  there  is
no  evidence in the record that an escrow account was established
other  than Oatess September 22, 2003 letter, which says  one  is
being set up.  However, Mullins failed to raise this argument  in
the  superior court and therefore it is not properly before  this
court.   See Olivit v. City and Borough of Juneau, 171 P.3d  1137
(Alaska 2007); Jeffries v. Glacier State Telephone Co., 604  P.2d
4 (Alaska 1979).

     30    Mullins also asserts that her claim that the settlement
documents  resulted  in a counteroffer calls  into  question  the
existence  of  the original settlement agreement  and  that  this
entitles  her,  at the very least, to a hearing  on  the  matter.
Mullins is correct to point out that she would be entitled  to  a
hearing  if a material issue of fact existed as to the  existence
of the settlement agreement.  See Brooks Range Exploration Co. v.
Gordon,  46  P.3d  942, 944-45 (Alaska 2002).  However,  Mullinss
claim  that  the settlement documents resulted in a  counteroffer
does not raise a material issue of fact.  As a matter of law, the
settlement  documents  were  not a  counteroffer.   Moreover,  it
should be noted that Mullins does not appear to have requested  a
hearing until November 26, 2003  more than three months after the
superior  court  first  granted  Oatess  motion  to  enforce  the
settlement agreement.

     31    Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska
2001)   (noting  that [a] party may not raise an  issue  for  the
first  time  on  appeal  and cursory treatment  of  an  issue  is
considered by this court to be waiver of that issue).

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