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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stewart v. Elliott (10/1/2010) sp-6513
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
JAMES R. STEWART, )
) Supreme Court No. S-13286
Appellant, )
) Superior Court No. 4FA-07-01251 CI
v. )
) O P I N I O N
STEVE ELLIOTT, )
) No. 6513 - October 1, 2010
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: James R. Stewart, pro se, Fairbanks, Appellant.
Steve L. Elliott, pro se, Fairbanks, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and
Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
A driver was arrested on a felony driving under the influence (DUI) charge
at 12:40 a.m. on the date a new DUI law took effect. Represented by counsel, he pleaded
no contest to the DUI charge in return for its reduction from a felony to a misdemeanor.
But years later, the superior court granted the driver post-conviction relief, concluding
that his counsel had been ineffective in failing to recognize that although the new DUI
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law became effective at 12:01 Alaska Standard Time, Alaska was still on Daylight
Saving Time at the time of arrest.
The driver brought a malpractice suit against the attorney who negotiated
the plea bargain. The driver relied primarily on the decision in the post-conviction relief
action to demonstrate his attorney's negligence in failing to recognize a discrepancy
between Alaska Standard Time and Alaska Daylight Saving Time. But the superior court
declined to give the post-conviction decision preclusive effect and ruled that the driver
had not presented sufficient evidence to prove negligence.
Because the driver's attorney in the criminal action was not a party to the
post-conviction relief proceeding and neither directed nor controlled that litigation, we
agree with the superior court that the post-conviction relief decision did not have
preclusive effect in the malpractice action. We also conclude that the record supports the
superior court's decision, and we affirm it in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
1. Arrest and plea bargain
On September 1, 2001, Alaska's DUI law changed, lowering - from 0.10
to 0.08 - the blood alcohol percentage required for a driver to be considered "under the
influence."1 On that same day James Stewart was arrested at 12:40 a.m.2 Various tests
showed his blood alcohol percentage to be between 0.080 and 0.91. These levels were
under the .10 presumption in the old law but exceeded the .08 presumption in the new
1 See AS 28.35.030(a)(2). See also ALASKA STAT. ANN. § 28.35.030 cmt.
Effect of amendments (Lexis 2008) ("The 2001 Amendment, effective September 1,
2001, in paragraph (a)(2), substituted '0.08 percent' for '0.10 percent' . . . .").
2 According to Stewart, the traffic stop occurred at 12:20 a.m., 20 minutes
before the arrest.
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law. Because new laws become effective at 12:01 a.m. Alaska Standard Time, Stewart's
12:40 a.m. arrest proceeded under the new DUI law.3
Stewart was charged with a DUI. He faced a heightened charge because he
had a prior DUI conviction and another conviction for refusing to take a blood alcohol
test.4 Attorney Steve Elliott represented Stewart and negotiated a plea bargain under
which Stewart pleaded no contest in November 2001 to the reduced charge of a
misdemeanor DUI, carrying a one-year sentence and a $1,000 fine. He received an
additional year and 15 days due to revocation of probation in an earlier robbery
conviction.
2. Post-conviction relief
On May 3, 2002, Stewart filed a pro se petition for post-conviction relief
based on claims distinct from those in this appeal.5 Geoffry Wildridge, the assistant
public defender assigned to Stewart, reviewed the petition and found Stewart's
allegations not to be colorable and further concluded there were no other meritorious
claims that could be raised on Stewart's behalf. Accordingly, in October 2003 - well
after Stewart had served his prison term - Wildridge moved to withdraw as Stewart's
counsel.
Reversing course eight days later, Wildridge supplemented Stewart's
petition for post-conviction relief. Wildridge had become aware of a recent court of
3 See AS 01.10.070(d).
4 See AS 28.35.030(n).
5 Stewart claimed ineffective assistance of counsel, asserting that an evidence
suppression issue should have been argued by Elliott, and because he felt that his
consumption of alcohol before the new DUI law went into effect made his arrest ex post
facto .
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appeals decision,Fowler v. State,6 which contained dicta noting in passing that "the new
felony DUI law took effect at 12:01 a.m., Alaska Standard Time, (that is, at 1:01 a.m.
Alaska Daylight Time) . . . ."7 Distinguishing Daylight Saving Time from Alaska
Standard Time has a dramatic effect on Stewart's case. According to Fowler's dicta,
because we "fall back" an hour when switching to Alaska Standard Time, an arrest on
a given day during Daylight Saving Time is actually an hour earlier on Alaska Standard
Time.8 Because Alaska was on Daylight Saving Time when Stewart was arrested,
Fowler's dicta would place Stewart's 12:40 a.m. arrest 21 minutes before the law under
which he was arrested became effective.9 Stewart's arrest at 12:40 a.m. September 1
Daylight Saving Time would be considered to occur at 11:40 p.m. August 31 Alaska
Standard Time, which places it on the day before the new law went into effect.
On this newly discovered basis for ineffective assistance of counsel,
Wildridge argued on Stewart's behalf that Elliott failed to "perform at least as well as an
attorney with ordinary training and skill in the criminal law" by failing to recognize the
time discrepancy issue. Finding ineffective assistance of counsel, Superior Court Judge
Mark I. Wood granted Stewart's supplemented petition for post-conviction relief and
vacated the DUI conviction.
6 70 P.3d 1106 (Alaska App. 2003).
7 Id. at 1109.
8 Id.
9 To be clear, Stewart's arrest did not take place on the day we switch from
Daylight Saving Time; rather his arrest occurred on September 1, while Alaska is firmly
on Daylight Saving Time. See NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY,
INFORMATION ABOUT THE CURRENT DAYLIGHT SAVING TIME (DST) RULES (May 11,
2010), www.nist.gov/physlab/div847/dst.cfm (specifying that Daylight Saving Time ends
at 2:00 a.m. on the first Sunday of November).
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B. Proceedings
After achieving post-conviction relief, Stewart filed the present professional
malpractice case against Elliott, his original DUI attorney. The case came before
Superior Court Judge Michael A. MacDonald, who conducted a bench trial on March 4,
2008. Stewart was represented by counsel at trial. To establish a breach of the duty to
use the skill, prudence, and diligence that other attorneys with training and skill in
criminal law commonly possess, Stewart pointed to the post-conviction relief decision,
in which Judge Wood found that Elliott had not acted "like a reasonable attorney who
was skilled in the criminal law." Other than the post-conviction relief decision, Stewart
presented no evidence that a reasonable lawyer should have discerned the discrepancy
between the two time regimes. In contrast, there was evidence that other experienced
local defense attorneys, including Geoffry Wildridge, had failed to notice or raise this
issue in similar cases. Elliott also observed in his testimony that Fowler was decided
after Stewart's plea to the DUI charges and that federal legislation appears to conflict
with Fowler's suggestion that the two time regimes make a difference in the effective
date of new legislation.10
Judge MacDonald was concerned that Stewart presented no expert
testimony. Judge MacDonald pointed Stewart's counsel to Zok v. Collins,11 which
requires expert testimony in all but obvious or non-technical situations in order to
10 15 U.S.C. § 260a(a) provides: "[T]he standard time of each zone . . . shall
be advanced one hour and such time as so advanced shall . . . be the standard time of such
zone during [the period for Daylight Saving Time] . . . ." The question whether Daylight
Saving Time is actually different from Alaska Standard Time for purposes of the
effective date of new legislation is not before this court, and we do not decide it.
11 18 P.3d 39 (Alaska 2001).
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establish a breach of an attorney's duty of care.12 Despite this warning, Stewart's
attorney did not call an expert and maintained that the court "must acknowledge there has
been a finding [of ineffective assistance of counsel] by a competent court in this
jurisdiction."
Judge MacDonald ruled that Stewart had not proved that Elliott's conduct
fell below the standard of care for a reasonable attorney and entered judgment for Elliott.
On the question of issue preclusion, Judge MacDonald recognized that Elliott had not
been a party to the post-conviction relief proceeding and that the post-conviction relief
decision was thus not binding on Elliott. On the question whether Elliott breached his
duty of care, Judge MacDonald noted that three other local attorneys, all experienced
defense attorneys, had also failed to notice the difference regarding time regimes. In
light of the "subtle nature [of] the question of law," the fact that several attorneys had not
noticed the time discrepancy, and the fact that Judge Wood's post-conviction relief
decision "may be incorrect," the superior court found that Stewart did not establish that
Elliott breached his duty of care.
Stewart appeals, claiming that Elliott was negligent in failing to notice the
time discrepancy.
III. STANDARD OF REVIEW
Because Stewart relies on the post-conviction relief decision, his appeal
raises the question whether the post-conviction relief decision must be given preclusive
effect in the malpractice action. This is a legal issue,13 and we review questions of law
12 Id. at 42.
13 See State, Dep't of Health & Soc. Servs., Office of Children's Servs. v.
Doherty, 167 P.3d 64, 68-69 (Alaska 2007) (applying independent review to issue of
collateral estoppel).
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de novo,14 adopting the rule of law that is most persuasive in light of precedent, reason,
and policy.15
Whether a standard of care was breached is a factual determination.16 We
review factual findings under the "clearly erroneous" standard.17 We reverse a factual
finding only if we are left "with 'a definite and firm conviction on the entire record that
a mistake has been made.' "18
IV. DISCUSSION
Stewart argues that Elliott was negligent because he failed to distinguish
between Alaska Standard Time and Daylight Saving Time and thus failed to argue that
the new law had not yet gone into effect when Stewart was arrested. Citing the post-
14 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008);John's Heating Serv. v. Lamb, 46 P.3d 1024, 1030
(Alaska 2002).
15 Jacob, 177 P.3d at 1184.
16 Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 766 n.20 (Alaska 2007);
Bryson v. Banner Health Sys., 89 P.3d 800, 803 n.4 (Alaska 2004) (noting that extent and
scope of duty are questions of law); see Swenson Trucking & Excavating, Inc. v.
Truckweld Equip. Co., 604 P.2d 1113, 1118-19 (Alaska 1980) (explaining that breach of
duty is question for fact finder); see also Armstrong v. United States, 756 F.2d 1407,
1409 (9th Cir. 1985) ("[T]he determination of negligence requires the testing of
particular facts against a predetermined standard of conduct. The existence and extent of
a duty of care are questions of law but whether such a duty has been breached [is a
question of fact] . . . .") (internal citation omitted); Bursztajn v. United States, 367 F.3d
485, 490 (5th Cir. 2004) (distinguishing between existence of duty - legal question -
and whether defendant's particular behavior breached that duty - factual question).
17 Brotherton v. Brotherton, 142 P.3d 1187, 1189 (Alaska 2006);Nerox Power
Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 794 (Alaska 2002).
18 City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska
1993) (quotingParker v. N. Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)).
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conviction relief decision, Stewart contends that Elliott's "actions fell below the
reasonable range of attorneys skilled in the criminal law." We understand Stewart to
argue that, contrary to the superior court's ruling, the evidence was sufficient to establish
that Elliott breached his duty of care.
Legal malpractice is a professional negligence claim requiring the plaintiff
to establish four basic elements: (1) that the defendant has a duty "to use such skill,
prudence, and diligence as other members of the profession commonly possess and
exercise," (2) that the defendant breached that duty, (3) that the breach proximately
caused the injury, and (4) that actual loss or damage resulted from the negligence.19
This case hinges on the second element, breach of duty.20 The only
evidence submitted at trial that suggested a breach of duty was Judge Wood's earlier
post-conviction relief decision, which, Judge MacDonald concluded, was not binding on
Elliott. Further, Judge MacDonald observed that multiple other attorneys failed to notice
the time issue. Thus Judge MacDonald found that, given the evidence presented, Stewart
did not demonstrate breach. Judge MacDonald's conclusions were not erroneous.
A. Because Elliott Was Neither A Party To Nor In Privity With A Party
To The Post-Conviction Relief Decision, Issue Preclusion Does Not
Bind Elliott To That Decision.
Stewart attempted to demonstrate negligence by relying on Judge Wood's
post-conviction relief decision, in which Judge Wood concluded that Elliott's actions
constituted ineffective assistance of counsel. But Judge MacDonald correctly noted that
19 Shaw v. State, Dep't of Admin., Pub. Defender Agency, 816 P.2d 1358, 1361
n.5 (Alaska 1991) (citing Linck v. Barokas & Martin, 667 P.2d 171, 173 n.4 (Alaska
1983)).
20 The superior court ruled that "Stewart failed to establish that Elliott's
conduct fell below the standard of care of a reasonable attorney."
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that post-conviction relief decision does not bind Elliott in this professional negligence
claim.
We have held that post-conviction relief is a necessary prerequisite for a
claim of legal malpractice in criminal cases, but we have never suggested that it takes the
place of establishing the elements of negligence.21 For an issue in a separate action to
have preclusive effect under the doctrine of collateral estoppel, the party against whom
the issue is being asserted must have been a party to the earlier action.22 But if one was
not a party to the earlier action, that non-party may nonetheless be bound if in privity
with the party in the earlier action.23 In addition to the party/privity requirement,
collateral estoppel requires that the judgment be final and on the merits; that the
precluded issue be identical in both actions; and that the issue be essential to the final
judgment in the first action.24
To define privity, "[w]e have adopted the approach of the Second
Restatement of Judgments . . . ; it is an approach that 'relies on the various specific
relationships that justify preclusion.' "25 Privity exists where "the non-party (1)
substantially participated in the control of a party's presentation in the adjudication or
had an opportunity to do so; (2) agreed to be bound by the adjudication between the
parties; or (3) was represented by a party in a capacity such as trustee, agent, or
21 See Shaw, 816 P.2d at 1361 n.5.
22 See Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 297-98 (Alaska 2000).
23 State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty,
167 P.3d 64, 72 (Alaska 2007); Powers, 6 P.3d at 297; Alaska Foods, Inc. v. Nichiro
Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989).
24 Powers, 6 P.3d at 297-98.
25 Id.
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executor."26 Privity "is a shorthand way of expressing assurance that the non-party has
had adequate notice and opportunity to be heard, and that its rights and interests have
been protected."27 In effect, privity assures that it is fair to legally bind the non-party to
the actions of the party in the earlier action.28
In the past we have found privity only where the relationship allowed
significant and unhampered control over the earlier litigation. For example, where a
family that jointly occupied land litigated a claim where all family members had the
opportunity to participate in the litigation and generally agreed on its course, we held that
the family members were in privity and bound by res judicata when they later tried to
litigate the same claims as individuals.29 Conversely, we held that a secondary insurance
company was not in privity with a primary insurance company because neither could
exert control over the other's litigation.30 The lack of control over the other's litigation
was particularly relevant given that their liability coverages were slightly different, which
created distinct interests on behalf of each insurer.31 We held that co-workers injured in
a single accident were not in privity when each initially pursued litigation independently;
thus we declined to bind one to the other's failure to exhaust administrative remedies.32
26 Id. at 298 (citing RESTATEMENT (SECOND)OFJUDGMENTS §§ 39-42 (1982)).
27 Alaska Foods, 768 P.2d at 121 (citing Drickersen v. Drickersen, 546 P.2d
162, 170-71 (Alaska 1976)).
28 Donnelly v. Eklutna, Inc., 973 P.2d 87, 92 (Alaska 1999).
29 Id. at 93.
30 Powers, 6 P.3d at 297-98.
31 Id.
32 Elliott v. Brown, 569 P.2d 1323, 1328 (Alaska 1977).
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And we held that an individual shareholder was not in privity with a corporation - even
when the shareholder had significant control of the litigation - because the
shareholder's actions on behalf of the corporation did not provide the ability to represent
the shareholder's individual interests.33 Similarly, a government-employed social worker
was not bound by a decision against her state agency - finding the social worker's
actions inappropriate - because that employee had interests different from those of the
government and had no control over the government's litigation of the claim.34
In the present case, Elliott submitted an affidavit for the earlier post-
conviction relief proceedings, but he was not a party there; instead that case was between
Stewart and the State of Alaska. And there was no privity between Elliott and the State.
First, Elliott's limited participation in post-conviction relief certainly did not allow him
sufficient control to establish privity. Second, there is no evidence that Elliott agreed to
be bound by the post-conviction relief litigation. And finally, Elliott was not represented
by the State in a capacity such as trustee, agent, or executor.35
We have held that merely serving as a witness in an earlier proceeding does
not afford control over the litigation sufficient to establish privity,36 and the same logic
applies to providing affidavit testimony. While Elliott's affidavit may have given him
33 Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 122
(Alaska 1989).
34 State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty,
167 P.3d 64, 72 (Alaska 2007).
35 See Powers, 6 P.3d at 298 (citing RESTATEMENT (SECOND) OF JUDGMENTS
§§ 39-42 (1982)).
36 Elliott, 569 P.2d at 1328 ("Elliott's participation in [the earlier case] was
limited to testifying as a witness. Elliott had no control over [the claim in that case]. In
such circumstances he cannot be collaterally estopped.").
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some opportunity to explain his actions, it did not give him the opportunity to more
broadly control the litigation. He could not decide which general strategies to pursue in
the litigation, what evidence to present, how to cross-examine adverse witnesses, or
whether to settle the claim. And we note that Elliott's interest in this present litigation
- presumably the protection of his professional reputation and his personal assets -
would not necessarily have been those of the State in the post-conviction relief
proceeding. Elliott did not have a chance to vigorously defend himself or his interests
at the post-conviction relief stage. Accordingly, Elliott's participation in the earlier
proceeding does not give him the amount of control and discretion we require for privity,
and it would not be fair for him to be bound by the post-conviction relief decision.
Our conclusion that Elliott was not in privity with the State during the post-
conviction relief litigation squares with our recent decision in State, Department of
Health and Social Services, Office of Children's Services v. Doherty.37 There we held
that a decision against a state social service agency did not bind the state-employed social
worker when she was subsequently sued in her individual capacity.38 We stated:
The majority of courts maintain that government employees,
in their individual capacities, are generally not in privity with
the government and are not bound by adverse determinations
against the government. This is because the interests,
incentives, and immediate goals of a government employee
in his or her individual capacity will most often be dissimilar
from those of the government or even from those of that same
employee in his or her official capacity. As a result, cases
brought by or against the government or its employees in
their official capacities will not usually provide a proper
forum or even the slightest opportunity for a government
37 167 P.3d 64.
38 Id. at 73.
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employee to protect his or her own personal interests. And as
a matter of sound policy, this is how it should be. For when
the government enters the courthouse in order to prosecute
criminal conduct or protect a child in need of aid, it should
not be distracted from its purpose by the personal interests of
its employees.[39]
Because Elliott is not a government employee, the above rationale applies to him even
more forcefully. As in Doherty, the government's interest was not necessarily aligned
with Elliott's. The State could not chart its litigation with the benefit of Elliott's
firsthand knowledge of the actions and decisions during his representation of Stewart, nor
would the State necessarily be motivated by Elliott's interest in protecting both his
professional reputation and private assets. Indeed, given Doherty's conclusion that a
government worker does not sufficiently control an agency's litigation, it is untenable to
conclude that a private citizen, without even an employer-employee relationship, could
exert sufficient control to establish privity. Further, the policy basis for the State's
independence here is just as strong as that inDoherty: the State's ability to concede error
should not be constrained by its need to protect the interests of a third party.
Accordingly, because Elliott was neither a party to the post-conviction
relief proceedings nor in privity with a party given his inability to control that litigation,
collateral estoppel does not apply, and it was not error for Judge MacDonald to conclude
that the post-conviction relief decision does not bind Elliott.
B. It Was Not Clearly Erroneous For The Superior Court To Find The
Evidence Insufficient To Establish Breach.
Stewart next claims that Judge MacDonald erred in his determination that
Stewart failed to prove that Elliott breached his duty of care. Because there is adequate
39 Id. at 72 (internal footnotes omitted).
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evidentiary support in the record for Judge MacDonald's factual findings, his ruling that
Stewart did not establish a breach of the duty of care must be upheld.
Elliott testified that at the time of the plea bargain he consulted with two
experienced criminal defense attorneys about his strategy for the case and that neither of
them noticed an issue regarding Daylight Saving Time. Further, as the superior court
noted, even Wildridge, Stewart's post-conviction relief attorney, failed to notice the issue
at first and had moved to withdraw from the case due to the lack of colorable claims. This
too supports the superior court's conclusion that Elliott's actions were not below the
relevant standard of care. Significantly, the Fowler decision, which contained the dicta
about Daylight Saving Time, was not issued until May 2003, a year-and-a-half after
Stewart entered his plea to a misdemeanor DUI in November 2001.
Moreover, we are aware of no authority other than the Fowler dicta
suggesting that the discrepancy between Daylight Saving Time and Alaska Standard
Time has any impact on the effective time of new legislation. As Elliott submitted to the
superior court, federal law suggests that such a discrepancy does not exist. According
to the federal statute implementing Daylight Saving Time, "the standard time of each
zone . . . shall be advanced one hour and such time as so advanced shall . . . be the
standard time of such zone during [the period for Daylight Saving Time]."40 The
underlying question whether there is a discrepancy between Daylight Saving Time and
Alaska Standard Time is not currently before this court, and we do not resolve that issue
today. But the evidence, taken as a whole, supports the superior court's finding that
Stewart did not present sufficient evidence to show that a reasonable attorney would have
raised the time discrepancy as an issue in the DUI prosecution. Because the record
40 15 U.S.C. § 260a(a) (2007).
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supports Judge MacDonald's ruling, we are not left with the conviction that a mistake has
been made.41
V. CONCLUSION
Because Elliott was not a party to, nor in privity with a party to, the earlier
post-conviction relief proceeding, issue preclusion does not bind him to the conclusions
of that proceeding. Because adequate evidence supports Judge MacDonald's ruling that
Stewart failed to prove a breach of an attorney's standard of care, we AFFIRM.
41 City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska
1993) (quoting Parker v. N. Mixing Co., 756 P.2d 881, 891 n.23 (Alaska 1988)) (We
reverse under the clearly erroneous standard only if we are left "with 'a definite and firm
conviction on the entire record that a mistake has been made.' ").
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