*1 Cathy’s Cathy’s existing custody arrangement she is unfit for trust or that undis- requires custody in the welfare her be turbed. non-parent. or some other uncle On reasons, For foregoing superior remand, superior court should determine 19, 2004, May court’s orders of and June requirements have
whether these been met 2004, are The VACATED. case is RE- approving placement Cathy before outside MANDED proceedings. for further parents’ one of the homes. superi- The final issue is whether the hearing
or court should it have held before custody arrangements
determined respect
should not be modified with remaining in
three children David’s home. superior
We conclude that court also point.
erred on this Andrea’s modification GROSECLOSE, COOK SCHUHMANN & sought physical legal custody motion INC., Appellant, just Cathy, youngest boys of the two but living sought legal with David. Andrea also (the custody boy of the eldest one who had ROOT, INC., Appellee. BROWN & Cathy), proposed sex with but that he remain in pending possible in-patient David’s home No. S-10922. counseling. superior The court denied this Supreme Court of Alaska. hearing motion without a and left David with physical legal custody boys. of all three July
The rule is that there must be an
evidentiary hearing before motion for mod denied, custody
ification except in cases carry
where the movant has failed to her identifying genuine
burden of at least a fac dispute
tual change as to the existence of a in Here, superior
circumstances.7 court ac
knowledged that sex incident between
Cathy and her brother change constituted a circumstances,
in but denied the motion with hearing.
out a superior court should given
have opportunity Andrea an to show circumstances, changed
that “the considered conjunction
in with other relevant facts bear
ing upon interests, best [children’s] war custody
rant modification of the decree.”8 remand, superior
On court is not re-
quired to hear evidence on incidents that original
were aired in the divorce and custo-
dy proceedings. superior Until court remand,
issues its may decision on leave Maxwell, Cox, (Alaska 1990). 7. Maxwell v. 37 P.3d 8. Lee v. 2001) ("Once ("An the movant meets 25.20.110(a) [the] threshold custody See also AS award of making prima showing [of burden facie of a of a may child or visitation with the child be change substantial ... circumstances] she is change modified if the court determines that a whether, hearing entitled 'to a to consider requires circumstances the modification of the circumstances, light changed of such it is in the award and the modification is in the best inter- existing child's best interest to alter the custodial child.”). ests of the ”). arrangement.' *2 parties exchanged Alaska Civil Rule 26
disclosures) ambiguous. nor II. AND FACTS PROCEEDINGS Lisper Michelle and Linda Jean Ross held *3 parcels property two real Fairbanks subject to a first deed trust issued Febru- 7, ary favor of Brown & Root. The obligation deed of trust secured an to make a $200,000, payment interest, plus on or 1, April Agency before 1998. Yukon Title Lisper was named as trustee.1 In 1995 granted Ross appel- second deed trust to lant, Groseclose, Cook & Schuhmann Inc. (“Cook”), to secure an indebtedness of $25,000. provided Both deeds of trust for property upon sale of the default “to the highest and best bidder for cash in lawful States, money payable of the United at time Groseclose, Kuchle, Robert B. Jo A. of sale.” LeBlanc, Peter M. Cook Schuhmann & Gro- Lisper When and Ross failed to make the seclose, Inc., Fairbanks, Appellant. for trust, payments due on the first deed of Beneficiary’s Brown & Root executed a Dec- James D. Bray, DeWitt and Aisha Tinker laration of Default P.C., Fairbanks, and instructed Yukon Ti- Appellee. Guess & Rudd
tle initiate foreclosure. The sale was no- BRYNER, Justice, 14, 2002, January Before: ticed for Chief but was continued MATTHEWS, EASTAUGH, FABE, beneficiary’s request at the to March CARPENETI, 2002 at 10 a.m. Justices. The Notice of Default and
Sale stated that the would “be sold highest for cash or cashier’s check to the OPINION ON REHEARING public bidder at auction.” The notice stated EASTAUGH, Justice. owing obligation, the sum on the but not the anticipated amount of the offset bid. I. INTRODUCTION On March Floerching- 2002 Catherine beneficiary The of a second deed of trust er, Title, vice-president of Yukon went to the nonjudicial contends that a foreclosure sale Rabinowitz Courthouse to conduct the fore- on the first deed of trust was not fair and representative, closure sale. Cook’s Jo controlling reasonable and violated the stat- Kuchle, among present. was those Floer- utes. The post- trustee halted the sale and chinger anyone planned asked if to bid at the poned give it for four prospec- hours to two Terry sale. Stahlman indicated a desire to tive bidders time to obtain cash or cashier’s Floerchinger him bid. took aside and re- procedure checks. Because this was not un- viewed his funds to ascertain whether he had fair or unreasonable under the circumstances sufficient funds to exceed Brown & Root’s presented here, summary affirm judg- we $302,957. anticipated offset bid of Because Root, Inc., ment for Brown & whose offset only Stahlman had a cashier’s check for only bid was the received at bid the recon- $300,000, Floerchinger told him he was not vened sale auction. We also affirm the Alas- qualified to at bid the sale. attorney’s ka Civil Rule 68 award of fees judgment Brown & offering Floerchinger began Root. Its offer of the foreclosure sale to reconduct beneficiary’s the foreclosure sale was neither and entered the offset bid. (even premature though it was made before When she asked if were there other company Company.” 1. The is also identified in the record as "Yukon Title bidders, things, attempted to bid the offer of offered to Everts Cliff $305,000. why Floerchinger asked he had re-conduct the foreclosure sale and to cover earlier; re- Sep- himself Everts expense identified of the notice and sale. On hearing and had sponded that he was hard 2002 Brown & Root moved for tember him Floerchinger took not heard her ask. summary judgment. superior The court whether he had sufficient 68(b)(1), aside to determine Citing granted the motion. Rule cash or certified to bid. He had no funds Brown & Root then moved for an award of funds, Floerchinger that he could but told seventy-five percent of its fees. money from his banker. obtain superior court awarded fees in the requested. amount Brown & Root The court qualified Having determined that no bid- January entered final on ders, beneficiary, pres- were apart from the ent, potential might but two bidders appeals. *4 qualified, Floerchinger decided to become group postpone sale. informed the the She III. DISCUSSION postponed p.m. until that that the sale was announcement, day. Following Floerehinger’s Nonjudicial A. the Whether Deed of group told the that he would have Stahlman Trust Foreclosure Sale Must Be Set $350,000. up Shortly thereafter Stahl- bid Aside as Unfair or Unreasonable they whether man and Everts discussed postponed sale. Stahlman would attend the 1. of review Standard that if Brown & Root obtained told Everts grant summary judgment A strip property, title to the it would off the reviewed de novo.2 review the facts We liens, junior at which time one of them could in presented light a most favorable to the property money. purchase the for less any genu non-movant to determine whether p.m. Floerchinger At 2 returned to the ine issues of material fact exist and whether courthouse to hold the sale. Stahlman and the movant is entitled to as a mat present. Floerchinger sub- Everts were ter of law.3 No mitted Brown & Root’s offset bid. one bid, property Floerchinger else so sold the nonjudicial 2. the deed of Whether beneficiary for the offset bid. Yukon trust sale was unfair foreclosure
Title issued a trustee’s deed to Brown & unreasonable April Root on 2002. complaint superior filed a court Cook argues that Brown & Root violated against May It Brown & Root on 2002. nonjudicial conducting Alaska law in a deed alleged to conduct that Brown & Root failed of trust foreclosure sale that was unfair and sale, commercially a violated AS It that the notice of unreasonable. reasons
34.20.080(e), tortiously with interfered sale was deficient because failed to reveal complaint second deed of trust. The Cook’s anticipated amount of the offset bid. It place equitable requested that the court an argues also that the notice was deficient be- sale, property, aside the enter lien on the set that potential cause it failed to warn bidders judgment against Brown & Root for the regard would bidder without the trustee ($25,000 junior plus lien amount of Cook’s enough large enough cashier’s cash or interest), statutory judgment against enter a unquali- check to match the trustee’s bid as Brown & Root for all economic and noneco- Finally, it as- property. fied to bid on the damages nomic and for fees and law serts that the trustee violated Alaska costs, provide such additional relief as postponing it had started. the sale after just equitable. court deemed stated our reluctance to set Brown & Root served a Rule 68 offer of We have most July Among except aside foreclosure sales judgment on Cook on 2002. Hummell, Crosby Id. 3. 2003). Even when the sale foreclosure sale. Alaska Statute 34.20.080 unusual circumstances.4 statutory only requires procedure comply comply provisions, that the with fails to with only in that reach we will set it aside cases the terms and conditions of the deed of trust. “unjust buyer of trust extremes.”5 Here the deed stated; pay cash at the time of sale. It statutory conditions were met “Trustee ... shall sell said ... at require trus Alaska law does not here. auction, public highest and best bidder give notice of the prospective tee to bidders money for cash in lawful of the United anticipated offset bid or inform amount of the States, payable at time of sale.” Per the may require them to them that the trustee trust, provide deed of the trustee was to their bids demonstrate their of the default written notice and the sale. or cashier’s cheeks at the time of sale. cash The notice of default announced that only requires the trustee Alaska law property would be “sold for cash or cashier’s specifies record a notice of default that highest public check to the bidder at auc- trustor, page the book and name of the tion.” recorded, descrip where the trust deed is property, that a tion of the a statement trust proce nextWe consider whether the obligation breach of the for which the deed inherently dure here followed rendered the occurred, security trust is has the nature unreasonable, requiring sale unfair and breach, obligation, the sum of the *5 we set it Potential aside. bidders with ad by property, election the trustee to sell the vance notice of the amount of the beneficia date, time, place and the and of the sale.6 ry’s proposed might offset bid well be better requires notice of the amount of The statute successfully able to at bid the auction. But obligation; require the it does not notice of we are not convinced that the of a failure anticipated the amount of the offset bid.7 anticipated notice to state the amount of the require that Nor does notice the trustee prevents potential offset bid bidders from may require bidders to demonstrate their independently calculating either that amount satisfy to the sale terms.8 Cook con asking or the trustee how calculate it. argument appeal ceded at oral on that noth ing precluded procedure in the statute the agree giving We also advance notice here. followed require that the trustee will cash or a cash specify pro- equivalent
No Alaska statutes or cases a potentially at the auction would by who, Cook, junior cedure which the trustee must conduct a benefit those like hold Church, date, time, (Alaska McHugh place 4. v. 583 P.2d 216 and of the sale. An inaccura- 1978). cy may the in street address not be used to set legal description aside a sale if the is correct. sale, Smidt, any Rosenberg At time before the if the 5. 727 P.2d 783 default has 1986); 216; by McHugh, payments required by also 583 P.2d arisen failure to make see at Sem Alaska, deed, may by itic v. Nat'l Bank (Alaska 1969). the trust the default be cured payment of the sum default other than the principal which would not then be due if no occurred, 34.20.070(b) plus attorney default 6. had fees or AS states: actually by court costs incurred the trustee due than Not less after the default and not to the default. If under the same deed trust less than three months before the sale the notice of default under this subsection has trustee shall record in the office of the record- previously been recorded two or more times recording er of the district in which the trust and the default has been cured under this setting is located a notice of default subsection, may pay- the trustee elect to refuse (1) trustor, (2) out the of the name the book and ment continue the sale. recorded, (3) page and where the trust deed is description property, including of the trust 7. Id. The amount of the offset bid is the sum property's street address if there is a street owing obligation publica- on the as of the time of (4) property, address that a statement notice, interest, costs, plus expenses, tion of and obligation breach of the for which the deed of fees, including incurred occurred, (5) security trust is has the nature of beneficiary until the time of sale. breach, (6) owing the sum on the obli- (7) gation, the election to sell the trustee (8) properly satisfy obligation, 8. Id. them, junior Holders of deeds of absence or colluded with or deeds of trust.9 otherwise potentially benefit from a way trust would also behaved in a that was intended to disfa- allow at least some procedure that would postponement vor potentially Cook. The ben- grace period receipt between appropriate place efited Cook. Had the sale taken at 10 payment high bid and a.m., only qualifying bid would have been cash or cashier’s check. bid; Brown & Root’s offset a sale that morn- ing as scheduled would have therefore inevi- necessary to decide in this But it is not tably erased Cook’s second deed of trust. inform case whether a notice that fails to require that the trustee will immedi- bidders argues Brown & Root also failed payment equivalent ate in cash or a cash preserve any objection procedure necessarily sale un- renders the foreclosure postponement. ruling Given our on the mer- necessary fair and unreasonable. Nor is it issues, its of these we do not need to consider a foreclosure sale becomes decide whether preserved whether Cook waived or the issue. if unfair and unreasonable the trustee de- give apparent high clines to bidder B. Whether Brown & Root Made a grace period brief in which to secure the Judgment by Valid Offer of Offer- required cash or cashier’s check. We do not ing To Reconduct the Foreclosure questions have to decide those because the Sale (the postponement procedural third deficien- Cook) cy alleged by actually remedied Standard review possible procedural deficiencies. Nei- interpretation of Rule 68 “is a pre- nor the of trust ther AS 34.20.070 deed question of law that [this court] review[s] de postponing cluded the trustee from the sale novo, adopting the rule of law that is ‘most appeared prospective when it that both bid- persuasive light precedent, policy beneficiary ders other than the had insuffi- ”10 reason.’ We review awards of costs (or equivalent) cash to consummate cient discretion, attorney’s fees for abuse of “which a sale at the scheduled time. The deed of *6 arbitrary, capricious, if exists an award is gave authority postpone to trust the trustee unreasonable, manifestly improperly moti By giving prospective the sale. two bidders 11 vated.” knowledge actual of the amount of the offset equivalent, bid the for cash or its need
postponement provided some of the advance Validity the of offer notice Cook advocates. challenges superior Cook the court’s award Also, neither nor Everts was Stahlman attorney’s of Rule 68 fees to Brown & Root. prepared pay by to in cash or cheek cashier’s provides part: Rule 68 Postpone- at the close of the 10 a.m. sale. (b) judgment finally by If the rendered the gave opportunity ment therefore them an 5 percent court is at least less favorable inability if cure their to consummate a sale the offeree than offer ... the offeree bidder; high postpone- one of them was the pay ... shall all costs as under the allowed potentially ment allowed them to submit pay Rules and shall reasonable actual Civil out, qualifying they ap- As it turned bids. attorney fees incurred the offeror from conferred, parently against chose not to bid the date the offer was made as follows: other, not to return when each and elected (1) 2 if the offer was served no later than p.m. the trustee reconvened the auction at days parties 60 after both made the But Cook has directed us to no evidence that 26, procured required their disclosures Civil Rule Brown & Root or the trustee Chizmar, 1202, (Alas- parties dispute 9.The whether the deed of trust 10. Mackie v. 965 P.2d 1204 provided 1998) and notice of default argues such notice. Cook (quoting McCarthy, ka Jaso v. 923 P.2d 795, that the "time did not neces- (Alaska 1996)). term of sale” 801 sarily refer to the auction. We do not read the encourage pro- deed of trust and the notice to Crites, 11. Kellis v. 1113 spective they bidders to think that would not be 2001). pay cash at the auction. percent sixty-day of Root made its offer before the the offeree shall (b)(1), attorney contemplated by subpart actual fees. deadline its offeror’s reasonable timely purposes awarding offer was for January superior court award- On fees at the enhanced rate.16 seventy-five percent of its ed Brown & Root fees, in accordance with Rule petition rehearing for filed Cook 68(b)(1). challenges the award on sev- Cook original opinion after we issued our of June grounds. eral petition argued 2004. Cook’s for the first history legislation time that the which argues first that the offer was amended AS 09.30.065 and which was the untimely made before the because it was for our 1997 basis amendment Rule 68 parties exchanged Alaska Civil Rule 26 dis 68(b)(1) supports Cook’s that Rule view does apply only reads Rule 68 to closures. Cook apply judgment to offers of made before to offers made after Rule 26 disclosures are exchanged.17 Rule 26 disclosures are We reasons, because, exchanged this it ensures respond peti asked Brown & Root to parties possess sufficient informa tion. offer. Brown Root tion to evaluate the & offer, argues that its which was served be petition argued Cook’s that comments of due, were was not
fore Rule 26 disclosures Porter, Representative sponsor, the bill’s 68(b)(1). premature under Rule support meaning interpretation of the proposed February amendment. On preclude Because Rule 68 does not 1997, Representative Porter made these com- judgment, pre-disclosure offers of the offer of Judiciary ments before the House Commit- timely. Rule 68 has here was tee: purpose encouraging settlements are, [0]ffers of after a case has avoiding If protracted litigation.12 an offer is filed, party been one or the other can make days sixty after Rule 26 served no later than a formal offer to settle case. And what made, are the offeror recovers disclosures trying inspire we’re do is to attorney seventy-five percent of its fees.13 If offers and reasonable assessment of those sixty-day after the dead offer served they taking offers and them if are reason- trial, ninety days line but more than before able, consequently eliminating the costs of fifty percent of the offeror recovers its attor trial, process up including to and fees; thirty ney percent if the it recovers parties which is a cost to both and the ninety days offer is served or less but more everybody state and else. than ten trial.14 The rule there before delay. penalizes parties fore But does *7 early, If that offer was made real then it say party may a not when a civil action you expensive would be real if that Rather, judgment. make an offer of it first happened, if and a little bit less it was only party may last an states when make made later and a little bit less if it was may judgment: party offer of either make an made later. any days than 10 offer time more be “[a]t begins.”15 trial Because Brown & fore the Portwine, (Alaska 506(a) rehearing, Appellate normally 56 P.3d 8 Rule Fernandes would rejection rehearing. call for its as a basis for 2002). Bd., Watts v. 423 Seward Sch. P.2d 679 68(b)(1).
13. Alaska R. Civ. P. (Alaska 1967) (interpreting Supreme Court Rule 35, predecessor Appellate to current Rule 68(b)(2)-(3). 14. Alaska R. Civ. P. 506(a)). argu- But we to consider the choose 68(b)(1) prematurity 68(a) added). ment because the Rule issue (emphasis 15. Alaska R. Civ. P. Further, may require recur. does the issue Stepp, 16. See Farr v. 37 facts, disputed presents only us to consider and 1990) preclude (holding that Rule 68 does not question of law which can be resolved consid- making judgment offer while motion to amend statute, underlying eration of the words of the pleading pending). is legislative history, correspond- the text of the and ing Civil Rule. legislative history 17. Because Cook advances this argument petition for the time in its first Consequently, saying if permits what we’re is that which any offers to be made “[a]t period days this offer is made within a short time more than 10 before the trial time, begins.” you that from the would have get discovery, you after a case is filed to so Consequently, we rehearing hold on that at, you’re if kind of know where a short premature offer was not and that it was made, period of time after that the offer is though not invalid even it was made before that, it, days you accept after don’t parties made Rule 26 disclosures.18 trial, you finally go when the offer is Cook next that contends the offer percent you
within 5 of—less than what ambiguous. was argues, among Cook for, you’ve got would have settled things, that the offer was invalid it because attorney’s all actual fees and failed to state a definite sum. conclude We costs, from the time the offer was made that the unambiguously offer was valid. It judgment until the was entered. This is exactly described what relief Brown & Root an inducement. provide would if the accepted. offer were Although Stepp we held in Farr v. that “[a]n days If the offer is made later than that 60 judgment offer of specify must a definite sum discovery, goes after it percent. down to 75 unconditional,” and must be our real concern time, just really If made a short in that specificity case related to the of the something, before trial goes or then it offer rather than its communication of a mon percent. Obviously, down to 50 it in- etary amount.19 permits Rule 68 offers that people, early tended to make as on as judgment “money allow for the or possible, positions assess their and make or to specified in the offer.”20 effect accepted. reasonable offers and have them Nonmonetary offers of are valid they under long unambigu the rule so as are Representative Porter’s comments seem to ous and unconditional. assumption knowledgeable reflect an that a offer could be made after the disclosures recognize We that this poten- result could 26(a). required by Civil Rule But his words tially question raise at least one additional not expressly suggest do that he intended respect with fees awards: how premature earlier offer would be are quantify nonmonetary courts to offer in invalid, and therefore the issue that is now determining percent whether it was five rule, before us. The text of the the identical more than judgment? favorable We statute, underlying here, however, text of Represen- need not address that issue squarely tative Porter’s comments do not because was not raised convince us Moreover, appeal. think parties that offers we there is no made before the have on question for Brown & their premature, made initial disclosures are Root far less was favorable to Cook than the and therefore interpre- ineffective. Such an judgment. offer of tation, moreover, would mean that no offer could be effective under either AS IV. CONCLUSION 09.30.065(a)(1) (2) (and thus, or under Rule 68(b)(1) (2)) judg- For these reasons we AFFIRM parties unless both had made ment below. required by the disclosures the civil rules.
This would party failing mean that a to make BRYNER, Justice, dissenting in Chief required purposefully the disclosure could part. unintentionally pro- interfere with the offer Further, interpretation cess. such an disagree would I with the court’s conclusion that 68(a), conflict with the first sentence of Rule judgment exposed Brown & Root’s offer of cases, cases, Standing 18.The court nonetheless asks the Com- such as small claims in which no 26(a) mittee on Civil Rules to consider whether Civil required. Rule disclosures are 68(b) clarify Rule should be amended to the offer judgment procedure, of to consider whether it is (Alaska 1990). Stepp, 19. Parr v. 788 37 P.2d appropriate preclude to enhanced fee awards as judgment to successful offers of made before the 68(a) added). (emphasis 20. Alaska R. Civ. P. disclosures, 26(a) parties have made their Rule application and to consider the of Rule 68 to 600 so, history, as doing ignores provision’s under award of fees enhanced to an 68(b). no sound purpose, and offers well as Rule Civil support to this choice. reason 68(b) encourage pru- strives to Rule
Civil by de- early settlements toward dent efforts yet begins by recognizing dis- opinion The refusing an in which time frames fining three history that fa- strong legislative regarding unreason- will be deemed judgment offer February meaning. On vors the first The first trigger penalties. and can able (H.B.) Repre- sponsor, Bill 58’s House (b)(1), at frame, paragraph is set out time Porter, described to the Brian sentative here: issue Judiciary how Rule Committee House (b) by judgment finally rendered If the 68(b)(1) Representa- to work. was intended favor- percent at least 5 less the court is provision that would tive Porter said offer, or, if than the to the offeree able only awarded fees to be allow defendants, 10 multiple at least are there judgment are made after when offers of than favorable to the offeree percent less discovery”: parties “get offeree, offer, party whether the saying is that Consequently, what we’re defending against the claim or making the period made within a short this is if offer claim, pay all costs as allowed under shall time, you would from pay Rules and shall the Civil get discovery, is case have filed after offer- attorney fees incurred actual at, you’re if a you kind of know where so the offer was made as or from the date period of time after that the offer short follows: that, made, you days after and don’t (1) no later than if the offer was served trial, it, you finally go accept when days parties made the disclo after both than percent within 5 of—less the offer is offeree Civil Rule sures for, you’ve got you would have settled what rea pay percent of the offeror’s shall attorneys’ actual fees pay all reasonable attorney fees[.][1] actual sonable costs, from the time the offer was during this time frame can Rejecting an offer entered.[2] made until the was requiring the offeree to seven- result in ultimate fees. ty-five percent of the offeror’s again Addressing the same committee (b)(1) is am- wording paragraph But the later, days Representative Porter ce- three period biguous it leaves the exact because point: this mented provision this unclear. encompassed within provision in the offer of [T]he First, readings plausible. At two are least discovery right has been is aimed after reasonably read to de- provision can be person accomplished so that a has feel filing begins upon the period fine a is, way or the other. how the case one parties both made initial disclosures —“after judgments section comes into The offer of that ends no more the disclosures” —and early play certainly will induce settleme sixty days later —“no later than 60 than nt.[3] Alternatively, might provision be after.” these statements opinion dismisses describing period with no real read as intent, “Represen- words,’ legislative observing that allowing offers beginning as —in (b)(1) convince us early Porter’s comments do not served as tative paragraph under be parties have that offers made before please, but “no later than 60 parties as the prema- Today’s their initial disclosures are initial made days after” their disclosures. point. misses the meaning; ture.”4 This observation opinion the latter but chooses 68(b). Taylor, who described it Senator Robin P. 1. Alaska R. Civ. version. to Judiciary requiring as the Senate Committee judg- party accept Comm, who fails to an offer of "the notes, (Feb. Leg., 20th Sess. 2. H. Jud. 1st *9 ment, date, attorney's to actual a certain added). 1997) (emphasis after Comm, notes, Leg., 1st S. Jud. 20th fees....” added). (Mar. 1997) (emphasis Sess. Comm, notes, (Feb. Leg., Sess. 3. H. Jud. 20th 1st 24, 1997) added). (emphasis The same intent 4.Op. at by sponsor 599. echoed the bill’s in its senate was sliding-scale approach statutory- reasoning Alaska’s to But this problem describes a interpretation a require party facing does not definitive will never arise. A an offer of legislative history can opponent statement before be from an that has made a construing ambiguous timely in lan- used as an aid disclosure could never assert its own guage. expressions legisla- And reliable of breach of the deadline an as excuse for re- offer, ignored they jecting intent should not when tive be since the offeree’s failure to determining ambigu- are impair useful aids what disclose would never to Here, language Representative ous means. make an informed decision. Civil Rule 94 description Porter’s H.B. flexibility depart 58’s intended allows to from the strict meaning particularly seems useful it justice. because terms of a rule in the interest of In situation, comports description with his of the non-complying bill’s this offeree could early purpose: encourage hardly basic to settlement justice claim that the interest would by penalizing unwise decisions made after a allowing be advanced its own breach to 68(b) party fully Repre- prevent has been informed —or as applying. Rule from it, put party sentative Porter after the “has a Second, 68(a) reasons, opinion Rule feel for how the case is.” against Representative militates Porter’s in- rejects 68(b) Although meaning, today’s terpretation it this of Rule because “such an opinion interpretation advances no sound reason for con- would conflict with the first cluding party’s 68(a), that a permits decision sentence of Rule which offers uninformed early decline an offer of any should to made days ‘[a]t be time more than 10 unreasonable, presumptively be deemed begins.’”6 and before the trial argu- But this penalized, therefore when the uninformed ment overlooks the purposes two distinct guess 68(a) 68(b). wrong. opinion’s turns out to be served subsections and 68(b) interpretation of Rule seems to run 68(b), In contrast to pe- subsection which goal encouraging counter to the rule’s responses nalizes unreasonable to offers of pushes A par- reasonable action. rule that judgment, 68(a), subsection simply defines encourages ties toward uninformed choice the basic framework for a binding valid and simply unreasonable action and invites abuse. judgment: offer of it party allows either interpretation, time,” In defense of its opinion any an requires make offer “at that, points problems to two in the court’s offer to open days, specifies remain ten what view, weigh against interpretation it, fa- opposing party accept needs to do to by legislative history vored policy. and accepted describes how to convert the First, 68(b)(1) reasons, opinion judgment.7 if Rule Nothing offer into a in this sub- literally were require implies any penalty construed that “both section necessarily parties” will, original routinely should, make their disclosures be- or rejecting flow from penalties offer; fore rejecting merely uniform, could attach for an an adopts enforce- offer, purposes able, generally then the of the rule applicable early could be settle- subverted, party failing because “a process to make ment framework that is useful —a purposefully necessary disclosure could or regardless penal- of whether unintentionally pro- interfere with the offer imposed unreasonably rejecting ties are by failing cess” judgment. to make an initial disclosure.5 offers Hence no conflict exists Op. may 5. at 599. accrued. The offer not be revoked in the day period following service of the offer. If days within 10 after service of the offer the Op. at 599. party adverse serves written notice that the accepted, may party offer is either then file the 68(a) provides: 7. Civil Rule acceptance together offer and notice of with service, proof judg- and the clerk shall enter days At time more than 10 before the begins, accepted ment. party making An offer not within 10 trial either the a claim or withdrawn, party defending against may considered and evidence of the a claim serve upon party judg- except proceeding offer is adverse an offer to allow not admissible in a complete ment to be entered satisfaction of determine costs. The fact that an offer is money accepted preclude the claim for the or made but not does not offer, specified subsequent effect in the with costs then offer. *10 (b): 68(a) and the fact between subsections 68(b) for prescribes sanctions
that subsection unreasonably rejected
a limited universe validity utility bearing on the
offers has no 68(a)’s enabling procedures
of subsection accept offers “at
parties to make and
time.” intended mean- keeping
In with H.B. 58’s then, interpret I would
ing purpose, 68(b)(l)’s triggering as provisions
subsection parties have made only after both
penalties (or after the deadline initial disclosures
their As to all expired). has
for initial disclosures issues, opinion. join I in the court’s KELLY, Appellant, T.
James Alaska, Appellee.
STATE of
No. A-8712. Appeals of Alaska.
Court
July Mock, Defender,
Margi A. Assistant Public Brink, Defender, An- K. Public and Barbara chorage, Appellant. Simel, Attorney
Nancy R. Assistant Gener- al, Ap- Special Prosecutions Office