MARTECH CONSTRUCTION COMPANY, INC., а Texas corporation, Appellant, v. OGDEN ENVIRONMENTAL SERVICES, INC., a Delaware Corporation, Appellee.
No. S-4484.
Supreme Court of Alaska.
May 21, 1993.
852 P.2d 1146
Michael E. Kreger, Perkins Coie, Anchorage, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
COMPTON, Justice.
This dispute arises from the failed contractor-subcontractor relationship between Ogden Environmental Services, Inc. (Ogden) and Martech Construction Co. (Martech). After Ogden and Martech terminated their relationship through a settlement, Martech was sued by another subcontractor for breach of contract related to the Ogden job. Martech joined Ogden as a party and filed a third party complaint against it. The trial court granted Ogden‘s motion for summary judgment dismissing the third party complaint with prejudice and directing entry of judgment pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND
Ogden contracted with ARCO Alaska, Inc. to perform the PCB remediation project at the Swanson River Oil Field Site. Ogden entered into a subcontract with Martech under which one of Martech‘s tasks was to purchase, deliver and install two 250 kilowatt gas fired generators “including all connection requirements.”
Marteсh brought Ogden together with Cummins Northwest, Inc. (Cummins), a designer who could fabricate switchgear which would automatically shed and transfer electrical loads between the generators. However, a dispute arose in July 1988 over whether “including all connection requirements” required Martech to supply the switchgear, as Ogden claimed, or whether the switchgear was Ogden‘s responsibility. In October 1988 Martech ordered the switchgear from Cummins at Ogden‘s request. Both parties continued to deny liability for the switchgear. Each party continued to claim the other was responsible. It was never formally resolved who would pay for or take ownership of the switchgear.
On November 4, 1988, Ogden terminated its subcontract with Martech. On November 10, 1988, Ogden and Martech entered into a Settlement Agreement, Mutual Release and Waiver ending their relationship. The agreement provided that Martech would sell Ogden the on-site equipment and facilities purchased by Martech for the project and listed in the agreement. The switchgear, not yet being on-site, was not listed. Ogden promised to make a payment of $1.5 million to Martech to cover undisputed unpaid invoices.
The settlement recognized that “[t]he exact nature and amounts of the parties’ financial and contractual obligations to each other [were] in dispute” and noted that Martech and Ogden were “desirous of fully, finally and forever effecting a mutual release of their financial and contractual obligations to each other.” Paragraph 2 of the settlement provides:
2. The parties agree that all claims, demands, rights, and causes of action that each other has or may have against the other with respect to the above-described dispute or contract are hereby satisfied, discharged, and settled. The parties also agree to stipulate to the dissolution of the TRO, to discharge the injunction bond, and to seek, obtain and
be bound by a dismissal with prejudice in thе above-described action. Except as herein set forth, no party shall have any further obligation to pay any sum pursuant to the contract whether now or hereafter due, whether contingent or uncontingent, whether liquidated or unliquidated.
Paragraph 18, a comprehensive mutual release, provides:
18. The parties agree that this settlement is the compromise of their disputed claims referred to above and hereby agree and acknowledge that any other claims against each other, known or unknown, which arose on or prior to November 4, 1988, or arose pursuant to the contract for past or future losses, expenses or claims of any nature whatsoever (including any liability pursuant to the contract which might have arisen in the future had the contract not been terminated) are forever abandoned, and any right to assert such additional claims for any damages whatsoever are hereby forever waived and barred. It is hereby declared and acknowledged that the undersigned are familiar with the decision of the Alaska Supreme Court in the case of Witt v. Watkins, 579 P.2d 1065 (Alaska, 1978),1 and that it is still the true intent and desire to fully release all individuals, agents, firms or corporations who could at any future date be possible defendants in any action arising out of the matters described herein. The parties acknowledge and assume all risk, chance, or hazard that the alleged damages arising out of this dispute, if any, may be different, greater, or more extensive than is now known by any of the parties hereto. By this agreement the parties intend to discharge any liability which may be discovered now or hereafter, and specifically understand and agree that each has given the consideration herein mentioned in order to be released fully, finally, and completely from all liability for whatever damage, known or unknown, arising from or relating to the subject contract. The parties specifically release and renounce any right they may now or hereafter have to reform, rescind, modify, or set aside this Settlement Agreement, Mutual Release and waiver because of mutual or unilateral mistake. The risk of mistake is hereby assumed by the parties in consideration of the dismissal of the action described above. It is declared and acknowledged that no promise or inducement which is not herein expressed is made to secure this release. It is represented that this settlement release was not secured in haste by the instigation of the parties released, the undersigned were not (in agreeing to this settlement and to this release) at a bargaining disadvantage because of the nature of the action or the injuries or damages or for any other reason, and that all parties have been represented by legal counsel throughout the course of negotiations which have led to this release.
The settlement agreement also provided for arbitration of disputes regarding approval of daily worksheets for work рerformed and payment of invoices. Martech filed a demand for arbitration against Ogden on December 30, 1988 on a number of these claims, but not for the switchgear. Martech was awarded $19,127.24 by the arbitrator.
On November 17, 1988, Cummins informed Ogden by letter that Ogden could
On August 24, 1989, Cummins filed suit against Martech alleging numerous payments due, including that for the switchgear. In response, Martech asserted that it was acting as a disclosed agent and that Cummins had failed to join necessary parties. Martech also filed a third party complaint against Ogden. The superior court denied Martech‘s motion to join Ogden as a third party defendant.3 Martech then moved to join Ogden as a necessary party under
Ogden moved for summary judgment on the third party complaint on the basis of the settlement agreement. The trial court granted the motion. It also granted Ogden‘s motion for attorney‘s fees.5 Martech sought clarification whether Ogden was still a party to the lawsuit. The trial court, finding that there were no other claims against Ogden, noted that Ogden was no longer a party to the lawsuit.
Martech appeals the grant of summary judgment on its third party complaint, the removal of Ogden as a joined party,6 and the award of attorney‘s fees.
II. DISCUSSION
A. SCOPE OF THE SETTLEMENT
1. Standard of Review.
This court will review de novo the trial court‘s grant of summary judgment based on the interpretation of a contract. Peterson v. Wirum, 625 P.2d 866, 871-72 (Alaska 1981). A release is interpreted in the same manner as any other contract. Schmidt v. Lashley, 627 P.2d 201, 204 n. 7 (Alaska 1981). Summary judgment is inappropriate where the evidence before the trial court establishes that a factual dispute exists as to the parties’ intent. Peterson, 625 P.2d at 870. This court must draw all reаsonable inferences of fact in favor of the party opposing the summary judgment. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985).7
The key inquiry regarding this issue is whether the mutual release set forth in the settlement agreement applies to the dispute concerning the switchgear.8 Martech contends that the release does not apply because Ogden‘s refusal to purchase the switchgear occurred after the settlement was executed, and therefore was not anticipated at the time of execution. Ogden contends that even if it had a duty to purchase the switchgear, the dispute over the switchgear “arises out of” the settled transaction and the duty was thus discharged by the settlement.
Martech claims that the agreement between Ogden, Cummins and itself was a separate agreement from the principal subcontract and thus not encompassed by the settlement agreement. It argues that the wrongful act from which the claim arose, Ogden‘s refusal to take delivery of the switchgeаr, occurred after the settlement was executed and thus did not arise on or prior to November 4, 1988.
Martech relies on Petroleum Sales, Ltd. v. Mapco Alaska, Inc., 687 P.2d 923 (Alaska 1984), for the proposition that a settlement agreement does not release liability for post-settlement conduct. Mapco was sued by two local fuel distributors for antitrust violations. Id. at 925. The suit was
and that there was insufficient evidence to create a genuine issue of material fact to the contrary.
Martech‘s president, Ben Tisdale, supplied an affidavit in support of Martech‘s opposition to Ogden‘s motion for summary judgment. Attached to the affidavit are letters and memoranda evidencing that each party continued to deny liability for the switchgear and to insist that the other was responsible. Mr. Tisdale then states, “After the design was finalized, Ogden directed Martech to place an order for the switchgear. Martech did so, but only after Ogden agreed to pay for the switchgear.” There is evidence that Ogden requested Martech to order the switchgear. Hоwever, aside from Tisdale‘s assertion, there is no evidence that Ogden “agreed” to pay for the switchgear, thereby abandoning its position that Martech was responsible for paying for the switchgear. Tisdale offers no facts to support his assertion. There is no reference to letters, memoranda, or other writings in which Ogden agreed to pay for the switchgear. There is no reference to any conversations during which Ogden agreed to pay for the switchgear. There is no evidence who, by whatever means, agreed on Ogden‘s behalf to pay for the switchgear. There is no evidence to whom at Martech the agreement was conveyed. There is nothing in the record except Mr. Tisdale‘s naked assertion that before Martech placed the order, Ogden “agreed” to pay for the switchgear.
To defeat a motion of summary judgment an adverse party may not rest upon mere allegations, but must set forth specific facts showing that thеre is a genuine issue of material fact.
Because we conclude that the settlement release applies to the switchgear regardless of any alleged agreement, even had Martech alleged sufficient facts to establish a dispute whether an agreement existed, this question would not be material to our resolution or defeat summary judgment.
The issue before the court was whether the distributors “asserted a claim sufficiently distinct from those which they voluntarily relinquished” in the settlement. Id. at 927. This court held that the second suit, although based on new conduct which triggered the litigation, “substantially echoe[d]” the settled suit because both required that Mapco be found to hold a monopolistic position. Id. at 928. Since that finding was covered by the settlement, it could not be litigated again. Id. We also held that the behavior addressed in the settlement, unlawful monopolistic pricing, encompassed both the underpricing complained of in the first suit and the overpricing complained of in the second suit. Id.
We did not discount the possibility that in the future the distributors could maintain an antitrust claim against Mapco. “There is no dispute that a new cause of action accrues for damages caused by post-settlement antitrust conduct each time such new or renewed conduct is engaged in.” Id. at 929. However, the new cause of action would have to be actionable indeрendently of the monopolistic position approved of in the settlement.9 Id. at 928-29. We rejected the blanket contention that the settlement should not cover post-settlement damages from post-settlement conduct, because the damages were too uncertain at the time of the settlement. We held that
the release would cover “all claims reasonably ascertainable at the date of its execution.” Id. at 930.
The claim sought to be maintained in this case is not the independent claim envisioned in Mapco. The settlement declares that the parties intended to resolve all of their “financial and contractual obligations to each other.” Even assuming that an agreement for Ogden to purchase the switchgear existed,10 we are not persuaded that this agreement was wholly independent from the principal subcontract discharged by the settlement. Delivery of and payment for the switchgear were not resolved at the time the sеttlement was executed. Thus, the failure of Ogden to accept the switchgear does not stand as a cause of action without the background of the dispute addressed by the settlement agreement. Therefore, existing questions of fact regarding the possible agreement by Ogden to pay for the switchgear will not defeat the summary judgment.
The release executed by Ogden and Martech was not limited to claims on the principal subcontract. Rather, the liability was released against any “claims of any nature whatsoever” between the parties. The settlement thus sought to resolve the entire transaction. The dispute over the switchgear existed before the settlement, the responsibility for the switchgear being debated back and forth between Ogden and Martech. Certainly the dispute between Ogden and Martech regarding the switchgear was a claim “arising from or relating to the subject contract.” We conclude that this claim was abandoned in acсordance with the settlement.
Moreover, we conclude that the claim involving the switchgear was encompassed in the settlement according to the test for certainty employed in Mapco.11 The claim regarding the switchgear was an issue which was “reasonably ascertainable” at
It is not significant that the switchgear was never actually discussed in the settlement negotiations. First, the agreement indicates a complete washing of the hands between the parties using as soap blatantly broad language to cover all possible causes of action: “All liability from whatever damage,” “fully, finally and forever;” “any damages whatsoever;” “claims of any naturе whatsoever;” and “all claims, demands, rights, and causes of action that each has or may have against the other
that abandons claims “known or unknown, arising from or relating to the subject contract.”
with respect to the above-captioned dispute.” Second, although the switchgear was not specifically discharged, neither was it specifically reserved as an independent claim. The broad language used implies that claims not specifically contemplated are settled. Those deserving special attention were addressed separately. There are no catch-all phrases to preserve omitted claims as there are to abandon them.12 Third, if an agreement did exist for Ogden to purchase the switchgear, it arose pursuant to the contractual relationship as it could have been one of the items for which an invoice was to be submitted to arbitration.13
B. RULE 19 JOINDER
1. Standard of Review.
This court has before reversed a trial court‘s order of joinder under
DeNardo v. State, 740 P.2d 453, 455-56 (Alaska 1987), cert. denied, 484 U.S. 919 (1987).
Martech and Ogden were involved in arbitration which was intended to resolve “a dispute aris[ing] among the parties regarding approval of any daily worksheet or payment of any invoice.” Martech contended below that the switchgear was not subject to arbitration because the settlement agreement “only requires that disputes arising out of the settlement agreement itself be addressed by arbitration.” However, questions concerning the scope of the release, such as whether it encompasses the switchgear agreement, are arbitrable. The settlement agreement provides for arbitration of “[a]ll claims, disputes and matters in question arising out of or relating to this agreement or the breach thereof.”
Martech submitted a number of invoices to arbitration. Eight months later Cummins filed suit against Martech over the switchgear. Eight months later still, the arbitrator awarded Martech $19,127.24. The claim for the switchgear was not submitted to the arbitrator. Martech did not challenge the award.
The problem with res judicata in this case is that the award apparently was never confirmed, nor was a final judgment entered pursuant to
2. Finality of the Judgment
Ogden contends that this court is without jurisdiction to consider the trial court‘s order that “other than as a prevailing third-party defendant in its motion for attorneys’ fees, Ogden is not a party to the remaining lawsuit.” It argues that the joinder order was interlocutory and not subject to review by this court.
This court has jurisdiction to consider appeals from final judgments entered by the superior court.
Generally, orders granting or denying motions to join parties to an existing lawsuit are interlocutory. Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. Unit A Oct.1981); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1325 (10th Cir.1978). However, in this case the order declaring Ogden a non-party was a denial of Martech‘s motion for clarification of the order dismissing the third party claim. The order dismissing the third party claim was certified by the superior court as a final judgment under
3. Was the order joining Ogden as a party ever vacated?
Martech contends that the August 1, 1990 order joining Ogden as a party pursuant to
The trial court‘s May 25, 1991 order that Ogden was no longer a party to the lawsuit was based on a lack of existing claims against Ogden. Ogden‘s response to Martech‘s motion for clarification claimed that the August 1 order was not effective because Cummins refused to file a claim against Ogden as a co-defendant.17 Martech contends that the trial court‘s adoption of Ogden‘s reasoning is evidenced by the fact that the trial court signed Ogden‘s lodged order without modification.
The January 4 order, as explained in the clarifying order of May 25, implicitly vacated the August 1, 1990 order which joined Ogden as a co-defendant. It is not necessary for either the trial cоurt or the parties to use the term “vacate” or any derivative thereof. We conclude that Judge Ripley‘s intention was to supersede the previous order.
3. Did the trial court abuse its discretion in vacating the Rule 19(a) joinder?
Although it urges otherwise, Martech‘s appeal of the propriety of the January 4
vacated, Martech still would have had to seek a
order is tantamount to an appeal of an order vacating a
Cummins seeks to recover from Martech for breach of contract. Martech defends that it was acting as an agent of a disclosed principal and thus not a party to the contract. See Restatement (Sеcond) of Agency § 320 (1958). The lawsuit between Cummins and Martech will necessarily make an adjudication about the relationship between Martech and Ogden.
However, Martech, the party seeking joinder, can be found not liable to Cummins without Ogden joined as a party. Cummins will be afforded complete relief if Martech is found to be liable. Cummins would be afforded incomplete relief only if there is a finding that Martech and Ogden
Ogden‘s presence as a party is not necessary for a just adjudication of the Cummins-Martech dispute. The evidence needed to make the determination that Martech was the disсlosed agent of Ogden can be obtained from Ogden as a witness. It is not necessary that Ogden be a party.
If Martech prevails, Cummins may have to sue Ogden to recover payment for the switchgear. Further, Ogden may be bound by a prior finding of agency. However, later litigation will not affect Martech. Ogden strongly resists its inclusion in this suit while being fully aware of this possibility. Cummins is free to amend its complaint again and include Ogden as a defendant.21
III. CONCLUSION
The settlement agreement contemplated all present and future claims arising out of the Martech-Ogden contracting relationship. The third party complaint was properly dismissed. The trial court‘s order dismissing the third party claim also effective-
ly vacated the prior order of joinder. The trial court did not abuse its discretion in vacating the joinder. In view of our holding, we do not address the issue of attorney‘s fees.
AFFIRMED.
MATTHEWS, J., with whom RABINOWITZ, C.J., joins, dissents.
MATTHEWS, Justice, with whom, RABINOWITZ, Chief Justice, joins, dissenting.
On appeal from the grant of a summary judgment we accept as true that version of the facts advanced by the losing party. Frantz v. First Nat‘l Bank of Anchorage, 584 P.2d 1125, 1126 (Alaska 1978). If, viewing the case from that perspective, the movant is not entitled to judgment as a matter of law, the case must be reversed. In the discussion that follows I set forth Martech‘s version of the facts. If these facts are accepted as true, Ogden is not entitled to judgment on the grounds that the settlement agreement of November 10, 1988, released Ogden‘s obligation to pay Cummins for the automatic switchgear.
According to Martech‘s president, Ben Tisdale, there was a dispute between Martech and Ogden concerning whether Martech was obliged to supply the automatic switchgear. This dispute arose in July of 1988. Martech consistently took the position that the automatic switchgear was not necessary to the project, that Martech was not obligated to supply the automatic switchgear, and that Martech would not
By a letter dated November 3, 1988, Ogden terminated its contract with Martech, claiming six material breaches on the part of Martech and, alternatively, claiming the right to terminate the contract for Ogden‘s convenience. None of the claimed breaches entailed the previous switchgear controversy. The parties then negotiated a settlement agreement entitled Settlement Agreement Mutual Release and Waiver
which was signed on November 10, 1988. Neither the switchgear nor Ogden‘s obligation to pay for the switchgear—which had not yet been delivered—was mentioned in the settlement agreement or in the discussions leading up to the settlement agreement. At some point after the settlement agreement was signed, Ogden declined to accept delivery of the automatic switchgear and refused to pay for it. Cummins sued Martech for the switchgear; Martech filed a third-party claim for indemnity against Ogden. The trial court granted Ogden‘s motion for summary judgment concerning Martech‘s third-party claim, presumably on the basis that the claim is barred by the settlement agreement.2
An important aspect of the settlement agreement is that it contemplates certain
First, in the release clause, section 18 of the 22 sectiоn agreement, care is taken to limit application of the clause to listed claims and claims which are described in the past tense, that is, claims which “arose” on or prior to November 4, 1988. The key sentence of the release clause reads as follows:
The parties agree that this settlement is the compromise of their disputed claims referred to above and hereby agree and acknowledge that any other claims against each other, known or unknown, which arose on or prior to November 4, 1988, or arose pursuant to the contract for past or future losses, expenses or claims of any nature whatsoever (including any liability pursuant to the contract which might have arisen in the future had the contract not been terminated) are forever abandoned, and any right to assert such additional claims for any damages whatsoever are hereby forever waived and barred. (Emphasis added.)3
Second, as to past work or services which have not been billed and as to future services arbitration remedies are provided in case of a dispute.
Ogden was not called upon to perform its promise to pay for the automatic switching equipment until after the date of the settlement agreement. Thus, Ogden did not breach its promise to make payment for the switchgear until after the date of the agreement. Consequently, Martech‘s claim for indemnity did not arise on or prior to November 4, 1988, and therefore the claim was not released.4 Instead, under paragraph 5 of the agreement, payment for the automatic switchgear was uninvoiced work for which Ogden was required to pay or, in the event of a dispute, to submit to arbitration.
In footnote 10, Op. at 1151 n. 10, the court acknowledges that this conclusion is correct: “Indeed, an agreement by Ogden to purchase the switchgear would have made the switchgear an item subject to invoice and thus arbitrable under paragraph 5(d) of the settlement.” Since, under the view of the transaction most favorable to Martech, Ogden did agree to purchase the switchgear, we must, for summary judgment purposes, treat the switchgear as subject to resolution under paragraph 5 of the settlement agreement. This necessarily means that the claim has not been released.
What remains is the court‘s suggestion that Martech may be barred—by some variant of the doctrine of res judicata—from litigating its claim because the claim was not arbitrated. Op. at 1152-53 n. 13. A sufficient answer to this contention is that Martech‘s claim for indemnity is not a mandatory subject for arbitration until it ripens, that is until and unless Martech is required to pay Cummins. This view is supported by much authority in the litigation context.6
For the above reasons, the judgment of the superior court should be reversed and this case should be remanded for further proceedings.
Notes
Similarly, the majority rejects Tisdale‘s affidavit which states that “Ogden agreed to pay for the switchgear” on the grounds that it is uncorroborated and insufficiently detailed. Id. at 1149-50 n. 7. The majority states regarding Tisdale‘s affidavit “[t]o create a genuine issue of material fact there must be more than a scintilla of contrary evidence.” Id. I agree that sometimes testimony may be so internally inconsistent and in conflict with the apparently reliable evidence offered by thе proponent of a summary judgment motion that it may not serve to create a genuine issue of material fact and thus defeat summary judgment. Yurioff v. American Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990), was such a case. There the key issue was whether plaintiff‘s injury occurred on March 19 or March 20. The defendant moved for summary judgment on the ground that it took place on the 19th, offering clinic records, testimony that the records were accurate, and plaintiff‘s deposition testimony that the injury probably was suffered on the date indicated on the clinic records. In opposition, plaintiff cited another portion of his deposition where he had stated that he thought he was injured on March 20. We held that this self-contradictory statement was not evidence reasonably tending to dispute or contradict the “authentic documentation of the injury.” Id.
This case is unlike Yurioff for a number of reasons. First, Tisdale‘s affidavit is not self-contradictory. Second, the affidavit is not contradicted by documentary evidence. Third, the movant in this case, Ogden, did not attеmpt an evidentiary showing that there was no agreement that Ogden would pay for the switchgear. Instead, Ogden moved on the sole ground that regardless of any agreement the release clause of the settlement agreement barred Martech from litigating the switchgear dispute:
But for the Settlement Agreement, Mutual Release and Waiver, Ogden would be obliged to dispute the admissibility and credibility of Mr. Tisdale‘s undocumented assertion at the end of paragraph 12 that Ogden agreed to pay for the switch gear.Ogden‘s Reply to Martech‘s Opposition to Ogden‘s Motion for Summary Judgment at 6 (emphasis added).
Ogden admittedly failed to address the factual issue concerning whether it had agreed to pay for the switchgear. Indeed, Ogden indicated how it would respond to the question if required to do so:
Ogden would contend, for example, that a directive, under the subcontract, was only that. It was not a promise to pay for work directed. A change order was a promise to рay. There was no change order.Id. at 6 n. 1. Ogden, however, offered no evidence to this effect in support of its motion. The proponent of a summary judgment motion has the initial burden of establishing the absence of genuine issues of material fact. Ratcliff v. Security Nat‘l Bank, 670 P.2d 1139, 1142 (Alaska 1983). Thus, since Ogden—the movant—did not carry its initial burden of showing by admissible evidence that no agreement existed, the court errs by requiring Martech—the nonmovant—to produce evidence, a “scintilla” or otherwise, on the issue.
- “All liability from whatever damage”
- “any damages whatsoever”
- “claims of any nature whatsoever”
- “arising from or relating to the subject contract”
- “known or unknown, arising from or relating to the subject contract.”
Op. at 1151-52 & n. 11. However, use of the verb “arose” places these seemingly broad phrases in the past tense with November 4, 1988, as the reference date. The court acknowledges the parties’ use of the past tense, Op. at 1152 n. 12, but fails to give effect to the verb “arose” in construing the relеase language. The court points out that the two clauses in which “arose” appears are joined by the disjunctive “or.” Since both clauses are framed in the past tense, however, severing the clauses does not alter the tense of the release sentence. Yet, use of the disjunctive leads the court to conclude that “[t]he release then specifically encompasses ‘claims of any nature whatsoever (including any liability pursuant to the contract which might have arisen in the future had the contract not been terminated).’ (Emphasis added.)” Id. From its use of emphasis, I take the court to rely in part on the highlighted parenthetical language in support of its reading of the release. Even the parenthetical clause, however, only further specifies the claims that are released, which claims are already limited by the use of the past tense.
3. This court finds that Martech‘s joinder of Ogden and the tenacity with which it opposed their dismissal are accurately characterized as by Ogden as an implacable emeshing [sic] of the third-party defendant in Martech‘s defensive posturing. In the court‘s view this conduct falls short of being vexatious, but beyond mere vigorous advocacy, perhaps in the range of hardball.
4. The court further finds that the claim against Ogden, while colorable, was a light pastel in hue inasmuch as the broad language of the agreement clearly released such claims.
5. This court аccordingly finds and concludes that Ogden is entitled to recover an augmentation beyond “partial compensation of its attorneys’ fees.”
As the majority opinion notes, Martech contended before the trial court that its claim was not subject to arbitration. However, Martech did not burn its bridges on this issue, as it also stated: “If this court ... decides the indemnification issue should be submitted to arbitration, the court can sever the indemnity action from the underlying action....”Moreover, the fact that the switchgear was not discussed cannot be interpreted as a positive inference that the release was not intended to address it. This court has before held that “Differences of opinion among the parties as to their subjective intent, expressed during litigation, do not establish an issue of fact regarding the parties’ reasonable expectations at the time they entered into the contract.... Rather, the court must look to express manifestations of each party‘s understanding of the contract.” Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981).
Similarly, Martech‘s contentions that it was at least mistaken and that a question of fact exists as to its liability regarding the switchgear are addressed explicitly by the release: “The parties specifically release and renounce any right they may now or hereafter have to reform, rescind, modify, or set aside this [settlement] because of mutual or unilateral mistake.”
Under the doctrine of res judicata, a judgment on the merits of the controversy bars subsequent actions between the same parties upon the same claim.... It is settled that res judicata precludes relitigation by the same parties, not only of claims raised in the first proceeding, but also of those relevant claims that could have been raised.
It is true that a defendant is not required to file a claim against one it has joined as a co-defendant in order to effect the joined party status. As an alternative, courts have ordered that the plaintiffs file an amended complaint naming the joined party as a defendant. See, e.g., Parkview Corp. v. United States, 85 F.R.D. 145, 148 (E.D.Wis.1980) (directing sua sponte that plaintiff serve new co-defendant with pleadings); Kodiak-Aleutian Chapter of the Alaska Conservation Society v. Kleppe, 423 F.Supp. 544, 546 (D.Alaska 1976) (using
However, we do not believe that
The referencing of a third party in the defensive posture is not sufficient to effectuate a joinder. Even if the order compelling Cummins to file a complaint against Ogden had not been
The interests relevant in
Martech also alleged that Ogden would not be entitled to attorney‘s fees if we ordered that Ogden remained joined in the cause of action. Because of our holding, we need not address that issue.