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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shooshanian v. Dire (8/13/2010) sp-6499

Shooshanian v. Dire (8/13/2010) sp-6499, 237 P3d 618

     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

AZURON SHOOSHANIAN, )
) Supreme Court No. S- 13205
Appellant,)
) Superior Court No. 3AN-07- 11512 CI
v. )
) O P I N I O N
)
COLLEEN DIRE, ) No. 6499 - August 13, 2010
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:   David  R. Edgren,  Edgren  Law
          Offices,   LLC,  Anchorage,  for   Appellant.
          Kevin G. Brady, Anchorage, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          WINFREE, Justice.

I.   INTRODUCTION
          A landlord sought re-possession of her condominium from
a  tenant.   The tenant asserted he had an enforceable  right  to
purchase  the  residence based on an option  in  his  lease  (the
option  right).  After a superior court bench trial at which  the
tenant appeared pro se, the court ruled in favor of the landlord.
The  tenant appeals, arguing that the trial court erred by:   (1)
refusing  to  postpone  trial to allow  him  to  retain  counsel;
(2)  failing to assist him with evidentiary objections at  trial;
(3) failing to disqualify the landlords attorney as trial counsel
because  the attorney was a necessary witness; and (4) concluding
that  there was neither an enforceable purchase agreement nor  an
unexpired  option  right.  We affirm the  trial  courts  decision
because:   (1)  the trial court did not abuse its  discretion  or
commit  plain  error  with respect to the procedural  issues  the
tenant  raises;  (2) the trial courts factual  findings  are  not
clearly  erroneous; and (3) the trial court did not  err  in  its
legal conclusions.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          In  May  2004  Azuron Shooshanian and Suewanna  Ekstrom
began leasing a condominium from Colleen Dire for $800 per month.
Dire  handwrote the one-page lease agreement, leaving blanks  for
the  lessees names.  Shooshanian wrote his own name into some  of
the  blanks  and wrote his and Ekstroms first  names together  in
others.   The lease included an option to purchase the  residence
and required that [i]ntent . . . be informed to [Dire] within the
year  before the end of the lease. (first year).  The lease  also
provided that all payments for repairs and upgrades would  factor
into  the  final cost of the residence.  Neither Shooshanian  nor
Ekstrom signed the lease.  The parties agree that the lease had a
one-year term.
          The parties agree that when Dire signed the handwritten
lease  she  said the residence was worth approximately  $140,000.
At  some point Shooshanian handwrote at the bottom of the  lease,
squeezed  above Dires signature, Sale price of house  is  140,000
with  -  % of going rate.  Shooshanian explained at trial that  -
%  of  going rate meant that after he told Dire he wanted to  buy
the residence he would owe her interest on the remaining debt  at
a  rate  of one-half percent less than the average going rate  in
the  mortgage industry.  Dire testified at trial that Shooshanian
must have added the sentence after she had signed the handwritten
lease and handed it to him.
          According  to  Shooshanian the parties also  agreed  to
important   terms   not  reflected  in  the  handwritten   lease.
Shooshanian testified that when Dire signed the handwritten lease
she  told him his monthly rental payments would count toward  the
purchase price and she would finance the purchase.  Dire disputed
both contentions at trial.
          The parties agree that Shooshanian and Ekstrom verbally
informed Dire within the lease period that they wanted to buy the
residence.  Shooshanian contended at trial that when he told Dire
he  wanted  to  buy the residence (1) she again  said  she  would
finance the purchase and (2) his $800 monthly payments started to
function as mortgage payments.  Dire disputed both contentions at
trial.   Shooshanian  and Ekstrom never applied  for  alternative
financing  or sought an appraisal of the residence.   Shooshanian
made no payment to Dire beyond the monthly $800, and when he made
repairs  to the residence he deducted the cost of materials  from
his  monthly payments.  Title to the residence remained in  Dires
name, and Shooshanian never assumed any responsibility for paying
property  taxes,  insurance premiums, or condominium  association
dues.  Shooshanian testified he understood a portion of his  rent
money  had  always  gone toward paying the condominium  dues  and
property taxes.
          Shooshanian testified that Dire told him not  to  worry
about  the  lease expiring because he would not  be  evicted  and
Kevin  Brady,  her  friend and later her  trial  attorney,  would
prepare  a new lease.  At trial Dire confirmed that she had  told
Shooshanian  she  would  attempt  to  get  him  a  better  lease.
Shooshanian contended that at some point he gave Dire  an  option
to  buy  lease and that she later told him she had filled it  out
and  then  lost it, but Dire testified that she did not  remember
telling him that.

          In  April  2006,  nearly  one year  after  the  initial
handwritten lease agreement expired and approximately one and one-
half  years  after  Shooshanian gave  notice  of  his  desire  to
purchase  the residence, Shooshanian, Ekstrom, and  Dire  met  to
fill  out  a  form  entitled Residential  Lease  with  Option  to
Purchase.   Together they wrote the date, the parties names,  and
the  security deposit amount into the blanks provided.  Dire even
signed  at  the bottom, but the form was never completed  because
they  were  confused about how to fill it out.  Among terms  left
blank  were  the  purchase  price, closing  date,  and  financing
arrangements.
          Shooshanian  testified that at Dires direction in  late
2006   approximately  one and one-half years  after  the  initial
handwritten  lease  expired and over two years after  Shooshanian
gave  notice he wanted to exercise the option  he went to  Bradys
office  to complete a lease agreement.  Shooshanian alleged  that
Brady  then  informed  him  the sale price  had  increased  above
$140,000  and  insisted  that before they  addressed  the  lease,
Shooshanian pay all accrued back rent.
     B.   Proceedings
          Brady  holding a limited power of attorney relating  to
the  residence  gave Shooshanian notice of the termination of his
tenancy in October 2007, nearly two and one-half years after  the
lease  term  had  expired and over three years after  Shooshanian
gave notice of his intent to purchase the residence.  Brady filed
a  Forcible Entry and Detainer (FED) action in district court the
next  month.   In  his  answer to the FED complaint,  Shooshanian
asserted that eviction was improper, claiming he held two  option
to  buy  leases.   This  caused the case to be  transferred  from
district to superior court.1
          At  a  conference  in mid-April 2008  the  trial  court
informed Shooshanian and Brady that trial would be held the  week
of  June  30.   On  June 11 Shooshanian moved for a  continuance,
contending he had other court appearances set for June.  In  this
motion,  he also requested Dires physical presence, alleging  she
had  deliberately missed trial in the past  we infer  Shooshanian
viewed  Dires prior attendance record as an additional reason  to
postpone  trial.   Shooshanian moved to expedite his  continuance
request   on   June  12.   The  trial  court  granted   expedited
consideration but denied the continuance request on June 13.
          At the June 20 pretrial conference Shooshanian told the
trial court he was not ready to proceed because he was hiring  an
attorney.   Shooshanian explained that he had  talked  to  a  few
different  lawyers in the seven months after the case was  filed,
but  that a particular (unidentified) attorney he spoke to  would
          not be available until August.  The trial court did not postpone
trial,  but  told  Shooshanian that if he hired an  attorney  the
attorney  could  move for a continuance.  The  trial  court  also
noted  that if Dire, who had been hit by a car earlier that year,
was  physically  unable to attend trial a  continuance  would  be
granted.   Trial took place as scheduled, with Dire in attendance
and Shooshanian representing himself.
          The  trial court found that Shooshanian held an  option
right  to  purchase the residence, but concluded that  a  further
contract was needed to accomplish the purchase.  The trial  court
also  found  that  Shooshanian told Dire he  wanted  to  buy  the
residence  and  that  the parties expected a  contract  would  be
drafted and signed to memorialize the terms of the sale, but that
no further contract was negotiated.  The trial court granted Dire
judgment for possession.  Shooshanian appeals.
III. STANDARD OF REVIEW
          We review for abuse of discretion a refusal to grant  a
continuance,2 decisions about guidance to a pro se litigant,3 and
decisions  about the admissibility of evidence.4  We  review  the
question   of   whether  opposing  counsel   should   have   been
disqualified  for  plain  error because  Shooshanian  waived  the
issue.5
          Whether  Shooshanians  option  right  to  purchase  the
residence expired unconsummated is a mixed question of  fact  and
law.   We  review the factual findings for clear error, reversing
only  when   after a thorough review of the record  we  are  left
with a definite and firm conviction that a mistake has been made.6
We review the legal issues de novo and will adopt the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.7
IV.  DISCUSSION
     A.   The  Trial  Court  Did  Not  Abuse  Its  Discretion  By
          Refusing To Continue The Trial.
          Shooshanian  argues  that the trial  court  abused  its
discretion  by refusing to continue trial to allow  him  time  to
retain  an attorney.  Refusal to grant a continuance is an  abuse
of  discretion  when a party has been deprived of  a  substantial
right or seriously prejudiced.8  The reasonableness of the denial
and  any  prejudice arising from the denial are  evaluated  on  a
case-by-case  basis.9   [B]ecause of the necessity  for  orderly,
prompt  and effective disposition of litigation and the loss  and
hardship to the parties [and] witnesses, trial courts should deny
motions  for continuances unless there is some weighty reason  to
the  contrary.10  One such weighty reason is prejudice  [to]  the
substantial  rights of parties by forcing them  to  go  to  trial
without being able to fairly present their case.11
          Shooshanian  argues that proceeding to  trial  deprived
him  of his right to be assisted by counsel.  He points out  that
the right to select and retain ones own counsel is valuable.12  He
also  cites  case law regarding the appointment  of  counsel  for
indigent  litigants in civil cases, although he has  not  claimed
indigency or otherwise explained the relevance of these cases.
          We  are  instructed by Siggelkow v. Siggelkow,13  where
Walter Siggelkow argued that his ability to prepare for trial had
          been hampered because he was hospitalized days after retaining
his  third attorney and the trial court denied his motion  for  a
continuance.14  Walter did not explain why he delayed  more  than
four  months between consenting to the withdrawal of  his  second
attorney  and  hiring  his  third.15   We  concluded  that  [t]he
prejudice  Walter  claims to have suffered  stems  not  from  his
illness, but from his late retention of counsel.16  We then quoted
with  approval the following language from the Supreme  Court  of
Nevada:   [W]hen new counsel is engaged just prior to  the  trial
date, the alleged lack of preparation on the part of such counsel
is  not necessarily a ground for continuance; particularly  where
the  party  has  been guilty of negligence, such  as  inexcusable
delay in employing the new counsel . . . .17  If late retention of
counsel  necessarily  warranted a  continuance,  litigants  could
indefinitely   avoid   trial  of  the  issue   by   making   late
substitutions.18
          Shooshanian  points out that he had  never  sought  any
extension  of time from the court or otherwise done  anything  to
delay  the  progress  of  the  case,  perhaps  in  an  effort  to
distinguish his circumstances from those of Walter in Siggelkow.19
Regardless   of   whether  Walter  delayed   trial   before   his
unsuccessful motion for a continuance,20 our specific holding did
not  depend  on that fact:  [p]rejudice resulting from  a  partys
lack of diligence in securing an attorney does not afford a basis
to obtain a continuance.21
          As   with  Walter  in  Siggelkow,  any  impairment   of
Shooshanians right to present his case was caused by his lack  of
diligence in securing an attorney.  Shooshanian offered no excuse
for  his failure to retain counsel during the seven months before
the  trial  date.   In  short,  the trial  court  did  not  force
Shooshanian  to go to trial without being able to fairly  present
his  case   rather, Shooshanian caused the situation by wait[ing]
until the last minute to [consider] hir[ing] an attorney.22
          Shooshanian  argues that the only hardship  Dire  would
have  suffered had the court granted a continuance was not having
the   [p]roperty  in  her  possession,  as  Shooshanians  monthly
payments  to  her  were current as of the date  of  the  pretrial
conference on June 20, 2008.  But a continuance would  have  cost
Dire  the  opportunity  to re-rent the residence  for  $1,200  or
$1,500  per  month   the  rental value  Shooshanian  and  Ekstrom
estimated  at  trial  for  properties with  the  same  number  of
bedrooms  in  the  same area of town.  Although the  trial  court
could  have guarded against this opportunity cost by requiring  a
bond,  it  did  not  need to reach the issue because  Shooshanian
failed to demonstrate a weighty reason to postpone trial.
          The trial court did not abuse its discretion by denying
Shooshanians request for a continuance.
     B.   The  Trial  Court Did Not Abuse Its Discretion  By  Not
          Explaining How To Make Hearsay And Relevance Objections
          Or  By  Not  Excluding  Hearsay Evidence  To  Which  No
          Objection Had Been Raised.
          Shooshanian   raises  two  issues   relating   to   the
assistance a trial court must provide a pro se litigant.   First,
Shooshanian  argues that the trial court failed  to  provide  him
          with reasonable assistance, advisement and allowance in
connection  with  procedural, versus strategic,  aspects  of  the
litigation.   Specifically, Shooshanian asserts the  trial  court
f[ell]  short by fail[ing] to inform [him] of his basic right  to
object to testimony on certain grounds and to the introduction of
other   evidence.   Second,  he  argues  that  the  trial   court
wrongfully  allow[ed] substantial hearsay testimony  provided  by
[Dire] and her witness without any admonishment of the witness or
notice  to [Shooshanian] that he had the right to object to  such
testimony.   Shooshanian takes exception to  testimony  by  Dires
daughter,  Stephanie  Shanklin, about  the  residences  condition
under   Shooshanians   care  and  the  condominium   associations
complaints about how he maintained the yard.
          When  a  pro  se  litigant is obviously  attempting  to
accomplish an action, the trial court should inform the  litigant
of  the proper procedure for that action.23  But a trial court is
not  required  to instruct a pro se litigant as to each  step  in
litigating  a  claim  because  such  involved  assistance   would
compromise  the  courts  impartiality in  deciding  the  case  by
forcing the judge to act as an advocate for one side.24
          The  record  reflects  that  Shooshanian  appeared   to
understand  trial  procedure.  He obtained  affidavits  from  his
witnesses but also subpoenaed them because he understood he would
need  to  present  his witnesses in court for  cross-examination.
When  the  trial  court explained to Shooshanian what  his  trial
brief  should  contain  and  accomplish,  Shooshanian  responded:
Okay.   Okay.  I know how it works.  Shooshanian never asked  the
trial  court  about  grounds  for  objecting  to  testimony   nor
attempted  to object when Shanklin testified about the residences
condition  and the condominium associations complaints.   Because
Shooshanian  did not make an obvious attempt to prevent  Shanklin
from  testifying on these subjects, the trial court did not  have
an obligation to instruct him in the proper procedure for raising
objections.
          Shooshanian  cites  Morkal v. State,25  an  unpublished
court  of  appeals  opinion, to support his argument  that  trial
courts  are required to inform pro se litigants of their  ability
to  object  to  hearsay testimony.  The question  in  Morkal  was
whether  the trial court should have sua sponte excluded  hearsay
statements.26  The court of appeals noted that the trial court had
specifically explained the hearsay rule to Morkal before trial,27
and from this Shooshanian infers that the trial court in his case
had  an  obligation to make this same explanation  to  him.   But
whether a trial court is obligated to explain the hearsay rule to
a pro se litigant was not at issue in Morkal, and there the court
of appeals concluded that [h]earsay evidence is admissible if the
opposing  party  does not object to it.28  This  same  conclusion
holds  for Shooshanians argument regarding testimony to which  he
did not object at trial.
          Finally, we note the trial court did filter hearsay and
irrelevant testimony on Shooshanians behalf.  The trial court sua
sponte prevented Brady from eliciting hearsay testimony from  the
condominium associations president regarding her discussions with
Shanklin about Shooshanian.  And in its decision, the trial court
          expressly stated it disregarded as irrelevant the presidents
testimony   that   the   association  was  considering   evicting
Shooshanian for violating its covenants.
          The  trial  court  did not abuse it discretion  by  not
explaining how to make hearsay and relevance objections or by not
excluding hearsay evidence to which no objection had been raised.
     C.   The  Trial Court Did Not Commit Plain Error By Not  Sua
          Sponte Disqualifying Brady As Trial Counsel.
          Shooshanian  argues that it was an abuse of  discretion
to  allow  Brady to act as Dires attorney at trial  when  it  was
plain   that  [Brady]  was  a  necessary  fact  witness  in   the
proceedings.   Shooshanian waived this issue because  neither  he
nor  Dire  attempted to call Brady as a witness  and  Shooshanian
never asked the trial court to disqualify Brady for any reason.29
Accordingly, we review Bradys continued role as trial counsel for
plain error.30  From the record before us it appears Bradys  only
pretrial involvement was that Dire may have asked him to draft  a
new lease and Brady may have used the prospect of a new lease  as
leverage  to  get Shooshanian to pay back rent owed Dire.   These
disputed  facts are not material to whether Dire and  Shooshanian
formed  an enforceable contract for the sale of the residence  or
an  extension of the option.  Brady was therefore not a necessary
witness at trial.
          The  trial court did not commit plain error by not  sua
sponte disqualifying Brady as Dires trial counsel.
     D.   The  Trial  Court  Did Not Err By Concluding  Dire  Was
          Entitled To Possession Of The Residence.
          Shooshanian challenges the trial courts grant  to  Dire
of  possession  of the residence, arguing that  the  trial  court
fail[ed] to properly take into account or otherwise disregard[ed]
evidence  tending  to  prove  that  [Shooshanian]  had   both   a
contractual  and  equitable interest  in  the  [premises].   This
argument   challenges   the  trial  courts   determination   that
Shooshanians option right expired unconsummated.
          The  trial  court concluded the handwritten  lease  was
insufficient  to  support a sale because it did  not  contain  an
agreed-upon  sale  price  or financing terms.   In  finding  that
Shooshanian  and  Dire did not agree on a sale  price  when  Dire
signed  the handwritten lease, the trial court reasoned  that  if
they had done so the last sentence setting out the purchase price
would  have  been  in  Dires handwriting like  the  rest  of  the
document.   As to Shooshanians claim that the parties  agreed  on
owner-financing, the trial court noted that the handwritten lease
did not provide for it.  The court further found it unlikely Dire
would  have agreed to finance the purchase because there  was  no
evidence she had the resources to do so and because it would take
an  extremely long period of time to pay off a $140,000  loan  in
$800  installments at one-half a percentage point below the  rate
commercial  banks offered.  Finally, the trial court  noted  that
Dires  continued  payment of insurance  and  property  taxes  and
Shooshanians continued deduction of repair costs from his monthly
payments were inconsistent with a mortgage arrangement.
          Shooshanian   argues   that  testimony   supports   his
contention  that  Dire agreed on a $140,000  purchase  price  and
          owner-financing when she signed the handwritten lease.  But his
argument  challenges  the  weight the trial  court  afforded  the
testimony and evidence at trial.  We give great deference to  the
trial courts credibility findings.31  It was not clearly erroneous
for the trial court to find that the parties had not agreed on  a
sale  price  and that it was unlikely Dire had agreed to  finance
the sale.
          Shooshanian  also  argues that the trial  court  should
have found that he and Dire made an enforceable oral agreement  .
.  .  that the option would be extended until such time  as  Dire
provided  Shooshanian  with a purchase agreement  containing  the
remaining needed terms.  But at trial Shooshanian testified  that
he  did  not  give  Dire anything of value to extend  the  option
beyond the handwritten leases expiration.  It was not clear error
for  the  trial court not to find Shooshanian and Dire agreed  he
would continue to pay $800 per month in exchange for an extension
of the option right.  Those payments are consistent with a month-
to-month  tenancy established when a landlord accepts rent  after
the expiration of a fixed-term lease.32  Nor was the trial courts
finding  clear  error  even if Dire told Shooshanian  that  Brady
would  draft a new lease or if the purchase price increased after
the  handwritten lease expired.  Willing parties can draft a  new
lease or negotiate a real estate sale in the absence of an option
agreement.
           It  was not clearly erroneous to find that the parties
never  agreed  on  a price or financing terms to  consummate  the
transaction   contemplated  by  the  option   language   in   the
handwritten lease.  Because a real estate sale agreement  without
these  terms  is not enforceable33 and because the parties  never
entered  into  an  enforceable agreement  during  the  three-year
period  after Shooshanian gave notice of his desire  to  purchase
the  residence  under his option right,34 we determine  that  the
trial  court  did not err in concluding that Shooshanian  had  no
cognizable  interest in the property other than  as  a  month-to-
month  tenant.   The  trial  court  therefore  did  not  err   in
concluding  that  Dire  was entitled to take  possession  of  the
residence.
V.   CONCLUSION
          We AFFIRM the trial courts decision in all respects.
_______________________________
     1    See AS 22.15.050 (providing district courts do not have
jurisdiction  over action[s] in which the title to real  property
is  in  question or action[s] of an equitable nature,  except  as
otherwise provided by law).

     2    Siggelkow v. Siggelkow, 643 P.2d 985, 986 (Alaska 1982)
(citing  Gregoire v. Natl Bank of Alaska, 413 P.2d 27, 33 (Alaska
1966), cert. denied, 385 U.S. 923 (1966)).

     3    Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001  (Alaska 2005) (citing Genaro v. Municipality of  Anchorage,
76 P.3d 844, 845 (Alaska 2003)).

     4      Hawley  v.  State, 614 P.2d 1349, 1361 (Alaska  1980)
(citing  Poulin v. Zartman, 542 P.2d 251, 260 (Alaska  1975),  on
rehearing,  548  P.2d  1299  (Alaska 1976),  overruled  on  other
grounds by State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)).

     5    Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (We
will  not  consider arguments that parties fail to raise  in  the
lower court, let alone arguments they have conceded below, unless
the trial court committed plain error.).

     6     Soules  v.  Ramstack, 95 P.3d 933, 936  (Alaska  2004)
(citing Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003)).

     7    Id. at 936-37 (citing Carr-Gottstein Props., Ltd. Pship
v. Benedict, 72 P.3d 308, 310 n.4 (Alaska 2003)).

     8     Siggelkow,  643  P.2d at 986-87  (quoting  Barrett  v.
Gagnon,  516  P.2d 1202, 1203 (Alaska 1973)) (internal  quotation
marks omitted).

     9     Id.  at 987 (citing among others Wright v. State,  501
P.2d 1360, 1366 (Alaska 1972)).

     10     Id. (quoting Kalmus v. Kalmus, 230 P.2d 57, 63  (Cal.
App. 1951), cert. denied, 342 U.S. 903 (1952)).

     11    Id. (citing Yates v. Superior Court, 586 P.2d 997, 998
(Ariz.  App.  1978)  and Gonzales v. Harris, 542  P.2d  842,  844
(Colo. 1975)).

     12     ONeill Investigations, Inc. v. Ill. Employers Ins. of
Wausau, 636 P.2d 1170, 1179 (Alaska 1981).

     13    643 P.2d 985.

     14    Id. at 986-87.

     15    Id.

     16    Id. at 987.

     17    Id. (quoting Benson v. Benson, 204 P.2d 316, 318 (Nev.
1949)).

     18    Id. (quoting Benson, 204 P.2d at 319).

     19      This   contention  is  somewhat  inaccurate  because
Shooshanian   did,  albeit  unsuccessfully,   seek   an   earlier
continuance.

     20    Id. at 986.

     21    Id. at 988 (citing Maynard v. Bullis, 222 P.2d 685, 686
(Cal. App. 1950) and Benson, 204 P.2d at 319).

     22    Id. at 988.

     23    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     24     Bauman  v. State, Div. of Family & Youth Servs.,  768
P.2d 1097, 1099 (Alaska 1989).

     25     Mem. Op. & J. No. 7796 (Alaska App. March 30,  2005).
Memorandum  opinions of the court of appeals do not create  legal
precedent.  See Alaska Appellate Rule 214(d).

     26    Id. at 1.

     27    Id.

     28    Id. (citing Byrd v. State, 626 P.2d 1057, 1058 (Alaska
1980) and Vaska v. State, 74 P.3d 225, 230 (Alaska App. 2003)).

     29     See  Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler
Motors  Corp., 221 P.3d 977, 985 (Alaska 2009) ([I]n  general,  a
party  may  not  present new issues or advance  new  theories  to
secure  a reversal of a lower court decision.  (quoting Zeman  v.
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985))).

     30    Tybus, 989 P.2d at 1285.

     31     See  Alaska R. Civ. P. 52(a) ([D]ue regard  shall  be
given  to  the  opportunity  of the  trial  court  to  judge  the
credibility  of the witnesses.); Rausch v. Devine, 80  P.3d  733,
737  (Alaska  2003)  (The  trial courts  findings  regarding  the
credibility  of  witnesses and weighing of the  evidence  may  be
reversed only if clearly erroneous. (citation omitted)).

     32    If a landlord consents to a tenants continued occupancy
after the expiration of the rental agreements term, the resulting
periodic tenancy is month-to-month unless the tenant pays  weekly
rent.  AS 34.03.290(c); AS 34.03.020(d).

     33    See Hollaus v. Arend, 511 P.2d 1074, 1075 (Alaska 1973)
(holding  writing describing real estate sale was not enforceable
because material terms were omitted or ambiguous, including  down
payment, sale date, security, and rate of interest).

     34    The option in the handwritten lease can be viewed as an
agreement to negotiate a sale of the condominium.  We will . .  .
enforce  an  agreement to negotiate only if it  contains  a  more
specific way to resolve . . . differences, such that we are  able
to  discern  when the agreement to negotiate has  been  breached.
Valdez  Fisheries Dev. Assn, Inc. v. Alyeska Pipeline Serv.  Co.,
45 P.3d 657, 667 (Alaska 2002) (quoting Davis v. Dykman, 938 P.2d
1002,  1008-09  (Alaska 1997)).  Even if enforceable  negotiation
procedures were in the handwritten lease, a court could not force
Dire  to  reach  a  final agreement with Shooshanian  because  an
agreement to negotiate is not an agreement to agree.  Id.

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