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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. SMJ General Construction, Inc., v. Jet Commercial Construction, LLC (4/12/2019) sp-7351

SMJ General Construction, Inc., v. Jet Commercial Construction, LLC (4/12/2019) sp-7351

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

        Readers are requested to bring errors to the attention of  the Clerk of  the App ellate Courts, 

        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

        corrections@akcourts.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



SMJ GENERAL CONSTRUCTION,                       ) 

INC.,                                           )   Supreme Court Nos. S-16785/ 16985 

                                                ) 

                        Appellant,              )   Superior Court No. 3AN-17-04294 CI 

                                                ) 

        v.                                      )   O P I N I O N 

                                                ) 

JET COMMERCIAL                                  )   No. 7351 - April  12, 2019 

CONSTRUCTION, LLC,                              ) 

                                                ) 

                        Appellee.               ) 

                                                ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Frank A. Pfiffner, Judge. 



                Appearances:  John C. Pharr, Law Offices of John C. Pharr, 

                P.C., Anchorage, for Appellant.  Michael C. Geraghty, Oles 

                Morrison Rinker & Baker LLP, Anchorage, for Appellee. 



                Before:  Bolger,  Chief  Justice, Winfree,  Stowers,  Maassen, 

                and Carney, Justices. 



                MAASSEN, Justice. 



I.      INTRODUCTION 



                The parties entered into a construction subcontract that contained a broad 



dispute resolution provision.  When disputes arose, the parties engaged in mediation as 



their  subcontract  required,  reaching  a  settlement  agreement  by  which  they  each 


----------------------- Page 2-----------------------

"absolutely release[d] the other of and from any and all claims, demands and obligations 



of  any  kind  arising  from  [the  subcontract]."    The  settlement  agreement,  unlike  the 



subcontract, contained no dispute resolution provision. 



               Two  weeks  after  settlement  the  subcontractor  filed  suit  against  the 



contractor in superior court, seeking damages and an order setting aside the settlement 



agreement on grounds that the contractor had concealed facts that made it difficult for 



the subcontractor to obtain releases essential to the settlement.  The contractor moved to 



dismiss, arguing that the subcontractor's claims were subj ect to the subcontract's dispute 



resolution provision.  The superior court granted the contractor's motion and awarded 



it attorney's fees.  The subcontractor appealed.  



               We  conclude that the  case  should not have been  dismissed because the 



parties, by the express language of their settlement agreement, released each other from 



"any and all" obligation to engage in dispute resolution as required by the subcontract.  



We therefore reverse the superior court's judgment and remand for further proceedings. 



II.     FACTS AND PROCEEDINGS 



        A.     Facts 



               The  parties  assumed  the  following  facts  to  be  true  for  purposes  of  the 



motion to dismiss giving rise to this appeal.  



               In  early  2016  Jet  Commercial  Construction,  LLC  (Jet),  an  Oklahoma 



corporation,  entered  into  a  contract  with  Kona  Grill,  Inc.,  for  the  construction  of  a 



restaurant in Honolulu, Hawaii.   In May Jet entered into a subcontract with SMJ General 



Construction, Inc. (SMJ), an Alaska corporation, "to supply the materials and labor for 



the construction of the building and other improvements."  The subcontract contained 



a dispute resolution provision that required the parties to first mediate any dispute and 



then  submit  it  to  arbitration  if  mediation  was  unsuccessful.    The  subcontract  also 



included a choice-of-law and venue provision designating Oklahoma law and the courts 



                                                -2-                                          7351 


----------------------- Page 3-----------------------

of Cleveland County, Oklahoma for any lawsuits "pertaining to the enforcement of the 



provisions of this Agreement."  



               The parties had a number of disputes during construction.   SMJ alleged, 



among other things, that after it bid on the basis of one set of building plans Jet switched 



them  for  another;  that  Jet  failed  to  give  SMJ  the  money  necessary  to  pay  its  sub- 



subcontractors and suppliers and paid some of them directly, without SMJ's knowledge 



and with money Jet owed to SMJ; and that Jet constantly revised the building plans and 



ignored the change-order process set out in the subcontract.   



               The parties mediated their disputes as required by the subcontract's dispute 



resolution provision.  On January 5, 2017, with the assistance of a professional mediator, 



they reached the following three-paragraph, handwritten settlement agreement: 



               Parties agree as follows: 



               (1)     Each party hereby absolutely releases the other of and 

                       from any and all claims, demands and obligations of 

                       any kind arising from contract of May 2016 regarding 

                       Kona Grill, Honolulu proj ect.  SMJ will execute and 

                       deliver  Release  of  all  claims  and  waiver  of  liens.  

                       Mr. Chang will sign same individually.  Counsel for 

                       Jet to prepare release. 



               (2)     Jet will pay to  SMJ the  sum  of  $150,000.00  if  SMJ 

                       will  deliver  to  Jet  within  30  days  of  today's  date  a 

                       fully  executed  release  of  all  claims  and  lien  waiver 

                       from  Dong  Hwan  Kim  individually  and  Hyan  [sic] 

                       Yang  Construction,  said  release  &  waiver  to  be 

                       notarized and on the form prepared by Jet's counsel. 



               (3)     This  yellow  memorandum  reflects  the  essential  & 

                       material terms  of the parties'  agreement  and will be 

                       followed by a more formal memorialization of same, 

                       to be prepared by Jet's counsel.  



                                                -3-                                           7351 


----------------------- Page 4-----------------------

Tyson Chang was SMJ's president, and Han Yang Construction, owned by Don Hwan 



Kim, was one of SMJ's sub-subcontractors on the proj ect.  Neither Jet nor SMJ asserts 



that "a more formal memorialization of" the handwritten agreement, as contemplated by 



paragraph 3, was ever prepared.  



                Soon after  the  agreement  was  reached,  SMJ  learned  of  conduct by  Jet, 



preceding the mediation, that impaired SMJ's ability to obtain the release from its sub- 



subcontractor,  Han Yang  Construction,  as required by paragraph  2  of the  settlement 



agreement.    According  to  SMJ,  Jet  falsely  informed  a  city  inspector  that  Han  Yang 



Construction had contracted directly with Kona Grill.   SMJ alleged that Jet created a 



fictitious agreement to show this contractual relationship, signed the fictitious agreement 



on behalf of Kona Grill as the "Owner's rep" when it lacked the authority to do so, and 



filed the fictitious agreement with the City of Honolulu.  SMJ asserts that Jet "concealed 



material  facts  from  SMJ  [during  the  mediation],  namely  that  its  fraudulent  actions 



rendered the condition precedent to the settlement impossible for SMJ to comply with."  



        B.      Proceedings 



                Two weeks after the mediation, SMJ filed a complaint in superior court.  



The complaint alleged three causes of action:  fraud and misrepresentation, breach of the 



covenant  of  good  faith  and  fair  dealing,  and  negligence.    It  sought  a  ruling  that  the 



settlement agreement was void and "[a] money judgment against  [Jet] in the principal 



amount of $782,061.48." 



                SMJ had unusual difficulty effecting service of process on Jet in its home 



state  of  Oklahoma.    But  Jet,  through  counsel,  eventually  filed  a  motion  to  dismiss 



pursuant  to  Alaska  Civil  Rule  12(b)(3)  (improper  venue)  and  (6)  (failure  to  state  a 



claim), while asserting a right to contest personal jurisdiction later.  Jet argued that SMJ's 



claims were not properly before the court because of the subcontract's dispute resolution 



provision  and  the  requirement  that  suits  be  filed  in  Oklahoma.   In  opposition,  SMJ 



                                                 -4-                                           7351 


----------------------- Page 5-----------------------

argued that the parties could no longer rely on the subcontract's dispute resolution and 



forum  selection  provisions  because  the  subcontract  was  entirely  superseded  by  the 



settlement agreement.  



               The superior court granted Jet's motion to dismiss in a perfunctory order 



stating  only that  it had  considered Jet's motion  "and the  arguments  and briefs  of the 



parties."  The court entered final judgment in Jet's favor and awarded it attorney's fees 



as the prevailing party.  SMJ appealed both the order of dismissal and the attorney's fees 



award.   



               While the appeal was pending, SMJ filed a request for mediation with the 



American Arbitration Association  (AAA).  In October 2017 the AAA  forwarded the 



mediation request to Jet and asked that the parties agree on a mediator.  SMJ suggested 



several names to Jet and, alternatively, that the parties "re-convene telephonically with 



the mediator who did the first one in January."  But the AAA received no response from 



Jet and later "put the matter on hold at SMJ's request."  



               SMJ then moved in superior court for relief from final judgment pursuant 



to Alaska Civil Rule 60(b), alleging that Jet's refusal to engage in mediation - after 



insisting  on  it  as  grounds  for  dismissing  SMJ's  lawsuit  -  constituted  both  newly 



discovered evidence and a change in circumstances that justified relief.  Jet opposed the 



motion.  It conceded that it had "not leaped at the chance to conduct another mediation 



with  [SMJ]"  but  disputed  that  its  failure  to  mediate  constituted  "new  evidence"  for 



purposes of Rule 60(b).  It contended that SMJ could still demand arbitration and have 



the arbitrator determine whether mediation was mandatory, or, alternatively, that it could 



ask a judge in Oklahoma to decide whether Jet was required to mediate.  



               The  superior  court  denied  SMJ's  Rule  60(b)  motion,  again  without 



explanation,  and  SMJ  filed  a  second  appeal.    We  combined  the  two  appeals.    SMJ 



challenges the court's grant of Jet's motion to dismiss, its award of attorney's fees, and 



                                              -5-                                         7351 


----------------------- Page 6-----------------------

its denial of the Rule 60(b) motion.  Because of our disposition of the first issue, we do 



not address the others. 



III.    STANDARD OF REVIEW 



                "We review grants of motions to dismiss under Civil Rule 12(b)(6) de novo, 



                                                                                                    1 

'construing the complaint liberally and accepting as true all factual allegations.' "  "In 



reviewing  motions  to  dismiss,  we  view  the  facts  in  the  light  most  favorable  to  the 

nonmoving party and draw all reasonable inferences in favor of that party."2 



                "Whether  [a]  claim  is  arbitrable  is  a  question  of  law  subj ect to  de novo 



          3                                                                   4 

review."   "We review the interpretation of a contract de novo."   "When applying the 



de novo standard of review, we apply our  'independent judgment to questions of law, 

adopting the rule of law most persuasive in light of precedent, reason, and policy.' "5 



IV.     DISCUSSION 



                The superior court granted Jet's motion to dismiss SMJ's complaint without 



                                                                                                         6 

explaining its reasoning; we assume the court adopted Jet's arguments for dismissal.   



        1       Cornelison v. TI G Ins., 376 P.3d 1255, 1267 (Alaska 2016) (quoting Kanuk 



ex rel. Kanuk v. State, Dep 't of  Nat. Res., 335 P.3d  1088,  1092 (Alaska 2014)). 



        2       Id. 



        3       Geotek Alaska, Inc. v. Jacobs Eng 'g Grp ., Inc., 354 P.3d 368, 371 (Alaska 



2015) (alteration in original) (quoting Lexington Mktg. Grp ., Inc. v. Goldbelt Eagle, LLC, 

157 P.3d 470, 472 (Alaska 2007)). 



        4       Mahan v. Mahan, 347 P.3d 91, 94 (Alaska 2015) (quoting Villars v. Villars, 



277 P.3d 763, 768 (Alaska 2012)). 



        5       Alaska Fur Gallery, Inc. v. Tok Hwang, 394 P.3d 511, 514 (Alaska 2017) 



(quoting ConocoPhillip s Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 

122 (Alaska 2014)).  



        6       See Alaska  Wildlif e Alliance  v.  State,  74  P.3d  201,  206  (Alaska  2003) 



                                                                                         (continued...) 



                                                   -6-                                              7351 


----------------------- Page 7-----------------------

Jet's  primary  argument  was  that  SMJ  was  required  to  raise  its  claims  in  arbitration 



pursuant  to  the  subcontract's  dispute  resolution  provision.    Jet  also  relied  on  the 



subcontract's  venue  clause,  requiring  suits  on  the  subcontract  to  be  brought  in 



Oklahoma.    But  because  we  conclude  that  the  subcontract  no  longer  governed  the 



parties' rights and obligations once they entered into a subsequent agreement by which 



they "absolutely release[d]  [each] other of and from any and all claims, demands, and 



obligations of any kind arising from" the subcontract, we find neither of Jet's arguments 



persuasive.  



       A.      Arbitrability Is A Question For The Courts. 



               It is the task  of the  courts to  decide whether the parties' two  successive 



contracts - the subcontract and the settlement agreement - require SMJ to arbitrate its 

claims.7  As codified in Alaska, the Revised Uniform Arbitration Act provides that "[t]he 



court shall decide whether an agreement to arbitrate exists or a controversy is subj ect to 



        6      (...continued) 



(observing that although an appellate court will sometimes remand for an explanation if 

a trial court grants summary judgment without identifying which of multiple theories it 

found  persuasive,  "[i]n  most  cases  involving  dismissal  or  summary  judgment,  the 

grounds  for  the  superior  court's  ruling  can  be  discerned  from  the  parties'  motion 

papers"); Hoekzema v. State, 193 P.3d 765, 771 (Alaska App. 2008) (noting that because 

the judge "offered no explanation for his ruling" in favor of the State on a sentencing 

issue,  the  reviewing  court  "presume[s]  that  the  judge  adopted  the  prosecutor's 

argument"). 



        7      Neither party argues that we should apply any law other than Alaska's to 



the questions of arbitrability and contract interpretation raised on this appeal.   



                                               -7-                                         7351 


----------------------- Page 8-----------------------

                                 8                                            9 

an agreement to arbitrate."   This is consistent with federal law.   Federal courts presume 



that parties intend the courts to decide "arbitrability" issues, such as "whether the parties 



are  bound  by  a  given  arbitration  clause"  and  "whether  an  arbitration  clause  in  a 

concededly  binding  contract  applies  to  a  particular  type  of  controversy."10    "The 



presumption  that  arbitrability  is  a  question  for  the  courts  can  only be rebutted  if  the 

parties have 'clearly and unmistakably provide[d] otherwise.' "11 



                 The subcontract, though requiring a specific dispute resolution procedure, 



does not mention arbitrability.  However, the subcontract's dispute resolution provision 



does  provide  that  disputes  "shall  be  submitted  to  mediation  .  .  .  pursuant  to  the 



Construction  Industry  Arbitration  Rules  and  Mediation  Procedures  of  the  American 



Arbitration Association" and that the next step, arbitration, "shall be conducted pursuant 



to"  the  same  AAA  rules  and  procedures.    The  AAA  rules  allow  the  arbitrator  to 

determine arbitrability.12  The subcontract's reference to those rules could therefore be 



        8        AS 09.43.330(c); see also  Classif ied Emp s. Ass 'n v. Matanuska-Susitna 



Borough Sch. Dist., 204 P.3d  347,  353  (Alaska 2009)  ("[A]rbitrability is  a threshold 

question for the court, not the arbitrator."). 



        9        Geotek Alaska, Inc. v. Jacobs Eng 'g Grp ., Inc., 354 P.3d 368, 372 (Alaska 



2015) (citing BG Grp ., PLC v. Rep ublic of  Argentina, 572 U.S. 25, 34 (2014)). 



         10      Id. (footnotes omitted) (quoting BG Grp ., 572 U.S. at 34). 



         11      Id. at 376 (alteration in original) (quoting State v. Pub. Saf ety Emp s. Ass 'n, 



798 P.2d  1281,  1285 (Alaska  1990)); see also Classif ied Emp s., 204 P.3d at 353 n.14 

("An exception to [the rule that courts determine arbitrability] applies when the contract 

clearly provides that the determination of arbitrability is for the arbitrator.").   



         12      AM. ARBITRATION ASS'N, CONSTRUCTION INDUSTRY ARBITRATION RULES 



A  N  D      M E  D  I  A  T  I  O  N     P R  O  C  E  D  U  R  E  S     R - 9 ( a )        ( 2 0  1 5 )  , 

https://www.adr.org/sites/default/files/Construction_Arbitration_Rules_7May2018.pdf 

("The arbitrator shall have the power to rule on his or her own jurisdiction, including any 

                                                                                            (continued...) 



                                                     -8-                                               7351 


----------------------- Page 9-----------------------

read as intending that questions of arbitrability are for the arbitrator, not the courts.13  But 



we need not decide whether to imply such an intent here, because whatever obligations 



the parties had under the subcontract have been explicitly released.   



        B.     The   Settlement   Agreement   Released   The   Parties   From   Their 

               Contractual Obligation To Arbitrate Disputes. 



               When parties have successive contracts addressing the same subj ect matter, 



"it is a well settled principle of law that the later contract supersedes the former contract 

as to inconsistent provisions."14  A contract's arbitration provision may thus survive the 



parties' later settlement of claims arising under the contract - but only if it is consistent 

with the terms of settlement.15 



        12     (...continued) 



obj ections with respect to the existence, scope, or validity of the arbitration agreement."). 



        13     See Oracle Am., Inc. v. Myriad Grp . A.G., 724 F.3d 1069,  1074 (9th Cir. 



2013)  ("Virtually  every  circuit  to  have  considered  the  issue  has  determined  that 

incorporation of the [AAA] arbitration rules constitutes clear and unmistakable evidence 

that the parties agreed to arbitrate arbitrability."); Contec Corp . v. Remote Sol. Co., 398 

F.3d 205, 208 (2d Cir. 2005) ("[W]hen, as here, parties explicitly incorporate rules that 

empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear 

and  unmistakable  evidence  of  the  parties'  intent  to  delegate  such  issues  to  an 

arbitrator."). 



        14     Juneau  Educ. Ass 'n  v.  City  &  Borough  of Juneau,  539  P.2d  704,  706 



(Alaska 1975) (quoting NLRB v. Op erating Eng 'rs Local 12, 323 F.2d 545, 548 (9th Cir. 

1963)). 



        15     Cf . Primex Int 'l Corp . v. Wal-Mart Stores, Inc., 679 N.E.2d 624, 628  (N.Y. 



1997) ("[A]bsent a more specific indication of intent to abandon contractual rights to an 

arbitration forum, a general release terminating the substantive rights of the parties to the 

contract will not nullify their  obligation to  submit to  an  arbitrator  all  of the  disputes 

relating to that contract and its termination."); Schlaif er v. Sedlow, 4 12 N.E.2d  1294, 

1296  (N.Y.  1980) ("[I]n the  absence  of  express provision to the  contrary, where the 

differences between the parties relate only to the substantive terms of their agreement, 

                                                                                    (continued...) 



                                                -9-                                          7351 


----------------------- Page 10-----------------------

              Unlike the subcontract, the parties' settlement agreement makes no mention 



of dispute resolution.  The first paragraph of the settlement agreement reads:  "Each party 



hereby  absolutely  releases  the  other  of  and  from  any  and  all  claims,  demands  and 



obligations  of  any  kind  arising  from  contract  of  May  2016  regarding  Kona  Grill, 



Honolulu proj ect."  We interpret a settlement agreement the way we would any other 

contract,16 giving the words "their ordinary, contemporary, common meaning" unless 



they are "otherwise defined."17  The phrase "any and all claims, demands and obligations 



of any kind arising from [the subcontract]" could hardly be broader.  Jet's demand for 



arbitration  and  SMJ's  obligation to participate have no  source  other than the  dispute 



resolution provision of the subcontract.  And the parties expressly released each other 



from "any and all . . . obligations" under that provision by the settlement agreement's 



plain language. 

               In Borough of  Atlantic Highlands v. Eagle Enterp rises, Inc.,18 a New Jersey 



court  addressed  a  similar  situation  in  language  we  find  helpful.    A  contract  for 

construction of a new borough building contained a mandatory arbitration clause.19  A 



       15      (...continued) 



they will be held in releasing claims to have dealt only with such substantive rights and 

obligations, not with the separate and distinct subj ect of choice of the arbitration forum 

for the resolution of disputes.").  



       16      Gaston  v.   Gaston,  954  P.2d  572,  574  (Alaska   1998)  ("Settlement 



agreements  should  be  interpreted  as  contracts  provided  that  they  meet  minimal 

contractual requirements."). 



       17     Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1001 n.3 (Alaska 2004) 



(quoting State v. Niedermey er,  14 P.3d 264, 272 n.38 (Alaska 2000)). 



       18      711 A.2d 407, 4 10 (N.J. Super. App. Div.  1998). 



       19     Id. at 408. 



                                             -10-                                       7351 


----------------------- Page 11-----------------------

number  of  disputes  arose  between  the  borough  and  the  contractor  over  delays  and 



payments; they eventually settled by entering into an agreement that said, among other 



things, that their "Contract [was] completed and this Agreement constitutes full and final 



satisfaction of all claims for compensation and neither party has any further claims for 

compensation or damages against the other."20  Two months later, the contractor made 



a claim for additional costs under the original construction contract, asserting in a letter 

to the borough that the settlement had been procured by duress.21  Then the contractor, 



"assum[ing] the continued existence of the arbitration clause in the original construction 

agreement," demanded that its claim be arbitrated pursuant to the AAA rules.22 



                The trial court held that the parties' settlement agreement did not abrogate 

the construction contract's arbitration clause, but the appellate court reversed.23  It held 



that the construction contract, "which included the arbitration clause in issue, appears to 



have been knowingly canceled and settled-out by virtue of the" settlement agreement, 



particularly by its stipulation "that [the] Contract is completed" and neither party retains 

"any  further  claims  for  compensation  or  damages  against  the  other."24    The  court 



concluded:  "We are at a loss as to how we might interpret this unambiguous language 



to mean anything other than that the original construction contract was to be regarded as 

history."25    



        20      Id. at 408-09. 



        21      Id. at 409. 



        22      Id. 



        23      Id. at 408. 



        24      Id. at 409-10. 



        25      Id. at 4 10.  



                                                 -11-                                             7351 


----------------------- Page 12-----------------------

                The Oklahoma Supreme Court considered a similar situation in Shawnee  

Hosp ital Authority v. Dow Construction, Inc.26  The hospital entered into a construction 



contract  with  the  contractor  for  hospital  additions.27    Disputes  arose  and  the  parties 



reached a settlement agreement that resolved all issues except "after-arising claims from 



latent construction defects," with the trial court "retain[ing] cognizance of controversies 

that would arise under  [the settlement agreement's] provisions."28  When the hospital 



later brought latent-defect claims in court, the contractor argued that the claims were 

subj ect to the construction contract's arbitration provision.29  The supreme court affirmed 



the  trial  court's  holding  that  the  arbitration  provision  was  waived  by  the  settlement 



agreement,  pointing  to   specific   language   in  the   settlement   agreement  that  the 



construction contract was "hereby terminated with respect to any further performance 



obligations on the part of" the contractor except "with respect to" latent-defect claims 



and that the "court shall retain jurisdiction to reopen the case, if necessary, to conclude 

this litigation . . . or to enforce the terms of this Settlement Agreement."30  The court held 



that  the  contractor's  "rights  and  liabilities  under  the  construction  contract  were 

discharged and stood superseded by the settlement agreement."31  



                The language Jet and SMJ used to settle their differences was as direct and 



unambiguous  as  that  in  Borough  of   Atlantic  Highlands  and  Shawnee  Hosp ital 



        26      812 P.2d  1351 (Okla.  1990). 



        27     Id. at  1352. 



        28     Id. 



        29     Id. 



        30     Id. at  1354-55 & n.16 (emphasis omitted). 



        31     Id. at  1355 (emphasis omitted). 



                                                -12-                                           7351 


----------------------- Page 13-----------------------

Association:  each party "absolutely release[d] the other of and from any and all  claims, 



demands and obligations of any kind arising from" the subcontract.  Like the New Jersey 



court in Borough of  Atlantic Highlands, we cannot "interpret this unambiguous language 



to mean anything other than that the original construction contract was to be regarded as 

history."32  And absent that original contract, the parties had no obligation to arbitrate 



their claims.  



                 The foregoing rationale also disposes of Jet's claim that the parties remain 



bound by the subcontract's choice-of-law and venue provisions.  We note, however, that 



our decision today is based on the limited record presented on a motion to dismiss.  We 



do not preclude the superior court's consideration on remand of extrinsic evidence that 



                                                                                                    33 

contradicts the plain meaning of the parties' settlement agreement, if any exists.                      We 



also do not address what happens if SMJ succeeds in having the settlement agreement 



set  aside  -  specifically  whether  the  parties'  rights  and  obligations,  including  those 



                                                                                                   34 

pertaining to dispute resolution, revert to what they were under the subcontract. 



        32       711 A.2d 407, 4 10 (N.J. Super. App. Div.  1998). 



        33       See Mahan v. Mahan, 347 P.3d 91, 94 (Alaska 2015) ("We examine 'both 



the  language  of  [a  settlement  agreement]  and  extrinsic  evidence  to  determine  if  the 

wording of the [agreement] is ambiguous.' " (quoting  Villars v. Villars, 277 P.3d 763, 

768  (Alaska 2012))); Alaska Diversif ied  Contractors, Inc. v. Lower Kuskokwim Sch. 

Dist., 778 P.2d 581, 584 (Alaska 1989) ("Extrinsic evidence may always be received on 

the question of meaning."). 



        34       See Borough of  Atl. Highlands, 711 A.2d at 4 10 (holding that suit to vitiate 



settlement  agreement  "which  does  not  contain  an  arbitration  clause[]  must  first  be 

addressed in [court]," and "[i]f it is found that the [settlement agreement] was induced 

by fraud or economic duress, then defendant may arbitrate its claim for additional monies 

in accordance with its demand for arbitration"). 



                                                   -13-                                               7351 


----------------------- Page 14-----------------------

V.     CONCLUSION 



             We  REVERSE  the judgment  of  the  superior  court  and  REMAND  for 



further proceedings consistent with this opinion.  The award of attorney's fees to Jet is 



VACATED. 



                                        -14-                                    7351 

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