author: PER CURIAM.

text:
    Takehiro HIKITA and Alaska Foods, Inc., Appellants, v. NICHIRO GYOGYO KAISHA, LTD., and Nichiro Pacific, Ltd., Appellees.
    No. S-10612.
    Supreme Court of Alaska.
    Feb. 20, 2004.
    Douglas C. Perkins, Hartig Rhodes Hoge and Lekisch, P.C., Anchorage, for Appellants.
    John S. Hedland, Hedland, Brennan, Heideman and Cooke, Anchorage, for Appel-lees.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

PER CURIAM.

I. INTRODUCTION

The superior court imposed litigation-ending sanctions against Alaska Foods, Inc., and Takehiro Hikita (collectively Alaska Foods) for failing to produce pretrial discovery. We reversed the sanctions order because the superior court did not explicitly consider lesser alternative sanctions. After considering and rejecting lesser alternatives on remand, the superior court reimposed its original sanctions order. We affirm, concluding that the superior court did not abuse its discretion.

II. FACTS AND PROCEEDINGS

This is the fourth time this case has come before us and the seventh time we have addressed aspects of the underlying dispute. Our most recent decision, Hikita v. Nichiro Gyogyo Kaisha, Ltd. (Hikita II), described the case’s lengthy procedural history, a story we need not retell here. In Hikita II we reversed a superior court summary judgment order entered in 1991 that dismissed Alaska Foods’s claims against Nichiro for several alternative reasons: on the ground of issue preclusion, for lack of substantive merit, and as a sanction for Alaska Foods’s failure to provide Nichiro with timely discovery.

In appealing the 1991 order, Alaska Foods challenged the superior court’s use of dismissal as a discovery sanction on two separate theories. Alaska Foods argued initially that a discovery sanction was unwarranted because Alaska Foods had adequately responded to Niehiro’s diseoveiy x’equests. Second, Alaska Foods argued that the superior court lacked authority to impose a discovery sanction because Nichiro had never moved for an order compelling discovery. Our decision in Hikita II rejected both these arguments. We nonetheless observed that “a trial court may not issue litigation-ending sanctions without first exploring ‘possible and meaningful alternatives to dismissal.’ ” Because the superior court had not explicitly considei’ed lesser alternatives, we remanded for further consideration of this point. In remanding the issue, however, we stressed that “[o]ur decision does not preclude the court from reinstating the original sanctions order if a careful consideration of lesser alternative sanctions convinces it that no sanction short of dismissal was appropriate and if the court fully explains its reasons for reaching this conclusion.”

On remand, after carefully considering and rejecting the possibility of imposing lesser sanctions, the superior court renewed its dismissal order:

[Mjonetary sanctions against [Alaska Foods] would be of no value in bringing about compliance with the discovery requirements. [Alaska Foods] and its primary owner, Takehiro Hikita, are already subject to judgments in favor of defendants which, at the time of the dismissal order in 1991, were in the amount of millions of dollars, and had not been paid. Mr. Hikita had been held in contempt of court for failing to appear at a court ordered judgment debtor examination. Accordingly, the imposition of additional monetary sanctions or a contempt citation against [Alaska Foods] and/or Hikita would not result in compliance with the order. Additionally, an order compelling compliance would have been of no effect. [Alaska Foods] had repeatedly ignored its obligation to make discovery, and had deliberately disregarded its own promises to do so.... Finally Alaska Foods’ failure to provide discovery in the over nine month peidod since the Supreme Court’s opinion of November 17, 2000 reaffirms this court’s conviction that no sanction other than dismissal is sufficient.

Alaska Foods again appeals.

III. DISCUSSION

The superior court has broad authority to determine appropriate sanctions for discovery violations, and its decisions in this area are “subject only to review for abuse of discretion.” We have nevertheless recognized that, before ordering a litigation-ending sanction, the trial court must expressly consider “possible and meaningful alternatives to dismissal.” We have also pointed out that a court considering this issue should be mindful that the sanction it ultimately chooses must be “sufficiently related” to the violation it seeks to punish.

Alaska Foods accuses the superior court of disregarding these principles in several ways. It first argues that, by the time the superior court considered the issue on remand, a discovery sanction was no longer warranted because our decision in Hikita II made Nichiro’s outstanding discovery requests superfluous. Alaska Foods posits that Nichiro’s discovery requests merely sought information to support its defense that Alaska Foods’s claims were barred by the doctrine of issue preclusion; because Hikita II found as a matter of law that issue preclusion did not bar these claims, Alaska Foods reasons that the discovery requests are now moot. In Alaska Foods’s view, then, dismissal as a sanction for failure to produce this information has no substantial relation to the discovery violation allegedly committed.

But this argument relies on a mistaken premise: that “the only reason for propounding any of the requests ... was to find support for Nichiro’s planned summary judgment motion on the issues of res judicata/col-lateral estoppel.” Here, since the record supports Nichiro’s position that its requests for discovery sought information relating to the independent issues of damages and issue preclusion, Hikita II’s ruling on the latter issue did not make Niehiro’s requests for discovery superfluous. Moreover, in reversing the superior court’s finding of res judiea-ta/collateral estoppel, Hikita II relied on Ni-chiro’s failure to show that Alaska Foods had any incentive to pursue earlier litigation resulting in a judgment against Adak Alaska Processors, Inc. — its original joint venture with Nichiro — after Nichiro abandoned the venture. As Nichiro correctly points out, a response to its discovery requests might have produced information enabling Nichiro to present the record evidence of incentives that Hikita II specifically found to be lacking to support a finding of issue preclusion on summary judgment.

Alaska Foods also argues that Nichiro’s discovery requests were superfluous — and that Alaska ■ Foods’s failure to respond to. them should therefore have been excused— because the parties conducted extensive discovery covering the same information at an earlier stage of the litigation, in 1977-1980. Yet Alaska Foods failed to raise this issue in its earlier appeal challenging the superior court’s discovery sanction — the appeal we addressed in Hikita II. As already noted above, the only arguments Alaska Foods raised concerning the discovery sanction in its earlier appeal were that it had submitted proper responses to Nichiro’s discovery requests and that the superior court lacked authority to impose a discovery sanction because Nichi-ro had never filed a motion to compel discovery. Hikita II rejected these arguments and upheld the superior court’s finding of an unexcused discovery violation, declaring the sanction order deficient only because the court had not explicitly considered lesser alternatives before selecting dismissal as the appropriate sanction. Hikita II’s resolution of these points is now binding and precludes Alaska Foods from advancing a new theory suggesting that Nichiro’s discovery requests were unjustified.

Alaska Foods additionally claims that the superior court’s refusal to find a meaningful lesser alternative sanction was based on the court’s mistaken belief that Alaska Foods owed money to Niehiro under a previously entered final judgment. The procedural background for this claim is largely undisputed.

In 1984 the superior court entered a final judgment encompassing all claims between Alaska Foods and Niehiro; the judgment dismissed all claims asserted by Alaska Foods and awarded Niehiro almost $700,000 on its counterclaims. An appeal was filed challenging the dismissal of Alaska Foods’s claims against Niehiro, but no appeal was filed from the award to Niehiro on its counterclaims against Alaska Foods. In our 1986 decision in Hikita v. Nichiro Gyogyo Kaisha, Ltd. (Hikita I), we reversed the dismissal of some of Alaska Foods’s claims, affirmed the dismissal of its other claims, and remanded the case to the superior court. Later that year, the superior court dismissed Alaska Foods’s reinstated claims and again entered a final judgment. Alaska Foods appealed; the earlier award on Nichiro’s counterclaims again remained unchallenged. In our 1989 decision in Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., we reversed the 1986 order of dismissal and remanded for further proceedings. That remand led to a renewed dismissal of the restored claims in 1990 and to a new final judgment entered in 1997, which, in turn, generated our decision in Hikita II — already discussed above.

As the above-described litigation over Alaska Foods’s claims proceeded, Niehiro made unsuccessful efforts to collect on the uncontested 1984 award for its counterclaims. Its efforts included repeated attempts to hold a judgment debtor examination of Alaska Foods’s owner, Hikita, which Hikita opposed. After our 1989 decision reinstating Alaska Foods’s claims, the superior court stayed Nichiro’s further efforts to execute on its 1984 award pending completion of the proceedings on remand. Following the superior court’s renewed dismissal of Alaska Foods’s claims in 1990, a judgment debtor examination was scheduled in 1991; Hikita, who lives in Japan, failed to appear at the hearing and was eventually held in contempt. Almost a decade later, when we remanded yet again in Hikita II, the award on Nichi-ro’s counterclaims remained uncollected.

In entering its findings concerning the unavailability of meaningful lesser sanctions after our remand in Hikita II, the superior court relied in part on Alaska Foods’s conduct after the court entered its 1990 order dismissing the case as a discovery sanction. Specifically, the superior court’s findings referred to Hikita’s contempt citation, Nichiro’s inability to collect the award on its counterclaims, and Alaska Foods’s continuing failure to provide discovery after our order remanding in Hikita II.

Alaska Foods disputes the superior court’s reliance on this post-dismissal conduct, insisting that its conduct is irrelevant to the issue of sanctions because Alaska Foods had no obligation to pay the 1984 award on Nichiro’s counterclaim. Alaska Foods theorizes that the original 1984 judgment in favor of Nichi-ro was vacated in 1989, when we issued our decision in Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., which reversed the superior court’s 1986 dismissal of Alaska Foods’s claims. According to Alaska Foods, our decision in Alaska Foods had the effect of vacating the entire 1984 final judgment, causing its unchallenged award to Nichiro on its counterclaims to become a non-final order that Nichiro could not enforce without first obtaining a judgment under Civil Rule 54(b). Hence, Alaska Foods insists, it did no wrong by refusing to honor Nichiro’s award and resisting its efforts to execute.

But Alaska Foods’s theory of lost finality fails for two independent reasons. First, Alaska Foods neglected to preserve the issue below. In resisting Nichiro’s efforts to conduct a judgment debtor examination, Alaska Foods urged the superior court, as a matter of discretion, to stay execution on Nichiro’s judgment because Alaska Foods expected to win an even larger, offsetting judgment when it prevailed on its reinstated claims. Alaska Foods cites no point in the record before we decided Hikita II when it claimed that Nichi-ro’s judgment was non-final as a matter of law and that Nichiro was therefore barred from collecting it. Had Alaska Foods advanced this theory in opposition to Nichiro’s efforts to conduct the judgment debtor examination, it seems reasonable to expect Nichiro might have .done precisely what Alaska Foods now accuses it of inexcusably failing to do — reduce its award to a formal judgment under Civil Rule 54(b). Given these circumstances, Alaska Foods cannot plausibly assert its freshly conceived theory to excuse its conduct.

More important, Alaska Foods’s theory of finality runs counter to settled law. Nichiro cites a body of cases recognizing that “any part of a judgment not appealed from continues in effect, regardless of the reversal of other parts of the judgment.” As the Delaware Supreme Court recently stated the proposition, “unappealed portions of [a judgment] are deemed final, and thus ‘due,’ when the appeal period expires.” Alaska Foods cites no contrary authority and makes no attempt to distinguish — or even acknowledge — the cases advanced by Nichiro. The rule espoused by these cases is sensible and appears to be uniformly followed. Thus, even if Alaska Foods had preserved the point, its theory would lack legal merit.

Alaska Foods last argues that the superior court erred in basing its findings concerning lesser alternátive sanctions on conduct occurring after the sanction of dismissal had already been imposed. But in our view, the superior court could reasonably construe Hikita II’s mandate as requiring a realistic appraisal of potentially meaningful alternative sanctions existing at the time of the remand. Moreover, our review of the superi- or court’s findings convinces us that the court relied on post-1990 events primarily to confirm its original impression that no meaningful lesser alternatives to dismissal were available when the litigation-ending sanction was ordered. We thus find no error in the superior court’s consideration of post-1990 events.

IV. CONCLUSION

Our decision in Hikita II authorized the superior court to reinstate its original sanctions order “if a careful consideration of lesser alternative sanctions convinces it that no sanction short of dismissal was appropriate and if the court fully explains its reasons for reaching this conclusion.” On remand the superior court complied with this mandate, issuing a careful explanation of its reasons for concluding that no meaningful lesser sanctions remained available. Because Alaska Foods has failed to establish that the superior court erred in reaching this conclusion, we AFFIRM the judgment of dismissal.

FABE, Justice, not participating.

      . Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1171-74 (Alaska 2000) (Hikita II).

      . Id.

      . Id. at 1180.

      . Id. at 1175.

      . Id.

      . Id. at 1175-76.

      . Id. at 1176 (quoting Underwriters at Lloyd’s London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993)).

      . Id.

      . Id. at n. 21.

      . Id. at 1175 (quoting Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998)).

      . Id. at 1176 (quoting Underwriters at Lloyd’s London, 846 P.2d at 119).

      . Underwriters at Lloyd’s London, 846 P.2d at 119.

      . See Hikita II, 12 P.3d at 1177.

      . Hikita II, 12 P.3d at 1175.

      . Id. at 1176.

      . We reject Alaska Foods’s contention that its failure to raise this argument before we decided Hikita II should be excused because its current attorney was new to the case in 1997, when the appeal that we decided in Hikita II was filed. Alaska Foods points to nothing in the record indicating that it raised the existence of previous discovery as a basis for opposing Nichiro's motion for discovery sanctions in the superior court before that court initially ordered dismissal as a sanction in 1990. Since the attorney who then represented Alaska Foods failed to raise the point before the superior court, Alaska Foods failed to preserve the point, even assuming that its current counsel excusably neglected to spot it before filing the 1997 appeal in Hikita II.

        .See Hikita v. Nichiro Gyogyo Kaisha, Ltd., 713 P.2d 1197 (Alaska 1986).

      . Id.

      . See Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117 (Alaska 1989).

      . Id.

      . Id.

      . Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1171-74 (Alaska 2000) (Hikita II).

      . Calistro v. Spokane Valley Irr. Dist. No. 10, 78 Wash.2d 234, 472 P.2d 539, 540 (1970) (en banc); see also Blue Hen Lines, Inc. v. Turbitt, 787 A.2d 74 (Del.Supr.2001); Edmison v. Clarke, 61 S.W.3d 302 (Mo.App.2001); State ex rel. Horridge v. Pratt, 563 S.W.3d 168, 170 (Mo.App.1978); Triton Coal Co. v. Husman, Inc., 846 P.2d 664, 669 (Wyo.1993); Smith v. West, United States Court of Appeals for Veterans Claims, April 14, 1999, 1999 WL 314092; see generally 5 Am Jur.2d Appellate Rev. § 861 (1995).

      . Blue Hen, 787 A.2d at 78.

      . Our conclusions on Nichiro’s primary points — that , Nichiro’s requests for discovery called for production of potentially important information concerning damages, that Alaska Foods failed to preserve its claim that this information had already been provided in prior discovery, and that the 1984 judgment on Nichiro’s counterclaims remained final and enforceable— make it unnecessary to separately discuss Alaska Foods's wrap-up argument that the extreme sanction of dismissal was unwarranted because any discovery violation committed by Alaska Foods pertained only to moot/improper areas, to discovery that had previously been provided, or to issues that were merely collateral.

      . Hikita II, 12 P.3d at 1176.

      . Id. at n. 21.


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    SOURDOUGH DEVELOPMENT SERVICES, INC., d/b/a Big Game Alaska, G. Michael Miller, and Doug Drum, Appellants, v. James W. RILEY, Michael J. Schachle, and J. Michael Schachle, Appellees.
    No. S-10801.
    Supreme Court of Alaska.
    Feb. 20, 2004.
    Barton M. Tiernan, The Law Offices of Barton M. Tiernan, Anchorage, for Appellants.
    Michael A. Grisham, Patton Boggs LLP, Anchorage, for Appellees.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Parties to a lawsuit disputed control of a closely held corporation. When parties alleged corporate mismanagement and requested dissolution, the trial court appointed a receiver to manage the corporation. After the court conducted a bench trial and resolved one issue, the shareholders and the corporation entered into a settlement agreement. The parties who prevailed at trial argue here that the superior court erred by declining to assess the receivership expenses against the other shareholders as a litigation cost under Alaska Civil Rule 79. We conclude that this dispute is resolved by the settlement agreement. The controlling passage of the agreement is section 9, which required the corporation to pay these expenses, rather than section 8, which generally permitted parties to seek litigation costs under Rule 79. We therefore affirm.

II. FACTS AND PROCEEDINGS

This case arises out of a series of disputes between two groups of shareholders of Sourdough Development Services, Inc., d/b/a Big-Game Alaska (Sourdough), a closely held corporation operating a wildlife park in Portage. The underlying substantive issues material to the deterioration of the business relationship are disputed by the parties but are not relevant to the issues in this appeal.

The underlying legal dispute involved the effect of two agreements. A 1992 agreement between family shareholders James W. Riley, J. Michael Schachle, Michael J. Schachle, and G. Michael Miller established the number of shares issued to each shareholder, and designated each of the four shareholders a director of the corporation.

In 1993 G. Michael Miller and James W. Riley, respectively president and secretary of Sourdough, on behalf of Sourdough entered into a partnership agreement with Doug Drum. Per the 1993 partnership agreement, Drum sold $50,000 in personal property to Sourdough in return for ten percent stock ownership in Sourdough.

Disputes arose between the shareholders regarding Sourdough’s management. Sourdough, acting through Miller in his capacity as president, filed a complaint in 1998 against Riley, alleging breach of fiduciary duty, misappropriation of funds, and conversion. Riley, Michael J. Schachle, and J. Michael Schachle, acting individually and derivatively on behalf of Sourdough, asserted claims against third-party defendants Miller and Drum. The Riley-Schachle answer and third-party complaint requested the dismissal of Sourdough’s complaint against Riley, sought an order rescinding the 1993 partnership agreement with Drum, and requested a declaration that Sourdough’s board of directors consist only of Riley, Miller, and the Schachles. The third-party complaint alternatively requested that the corporation be involuntarily dissolved, and that the court appoint a receiver for the corporation pending resolution of the request for involuntary dissolution.

Hoping to avoid a formal receivership, Miller, acting for Sourdough, entered into a limited financial receivership agreement with CPA Eileen Zaiser in July 1998. In September 1998 Superior Court Judge Sen K. Tan formally appointed Zaiser receiver, granting her authority “to ... manage the business and affair’s” of Sourdough pending the hearing and determination of the dissolution complaint. The court observed that “unless a receiver ... is appointed, the interests of the corporation and its shareholders will suffer.”

After conducting a two-day bench trial addressing one of the claims, the superior court ruled in favor of Sourdough, Miller, and Drum; the court found that the 1992 shareholder agreement was unenforceable because there was no mutual assent by all shareholders. The court reserved the remaining claims in the lawsuit. The remaining claims were to be tried in September 1999.

In June 1999 Sourdough (acting through the court-appointed receiver), Riley, Miller, Drum, and the Schachles agreed to settle the remaining claims. The parties agreed to dismiss all pending claims and to release each party from “any and all claims ... that arise out of or relate to any of the matters asserted in ... any actual or proposed pleadings submitted in the Lawsuit, or any matters that could have been asserted in the Lawsuit, or any actions taken pursuant to and in furtherance of [the] Agreement.” Section 8 of the settlement agreement allowed the parties to seek attorney’s fees under Alaska Civil Rule 82 and costs under Alaska Civil Rule 79.

The settlement agreement also gave Miller and Drum the option of having Sourdough buy the shares owned by Riley and the Schachles, following a valuation of the business. If Miller and Drum did not timely exercise their buy-out option, the settlement agreement gave Riley and the Schachles the option of having Sourdough purchase the shares owned by Miller and Drum. If neither group of shareholders timely exercised its buy-out option, the settlement agreement required the superior court to involuntarily dissolve the corporation.

The settlement agreement also provided that the receiver would continue to manage Sourdough’s business and affairs until a buyout or dissolution. Section 9 of the settlement agreement provided that the receiver “shall retain sufficient funds of the corporation to pay all expenses of the receivership and the Receiver shall then transfer all other assets, books and records of the corporation to the persons who are assuming responsibility for the corporation.” The superior court approved the settlement agreement in September 1999.

Per the settlement agreement, Miller and Drum tendered money to purchase the shares of Riley and the Schachles. In May 2001, after the receiver conducted a final accounting, Judge Tan approved the final accounting, authorized payment of the receiver’s final fees from corporate funds, and discharged the receiver.

In December 2000 plaintiff Sourdough and third-party defendants Miller and Drum filed a motion asking the court to enter a final judgment in their favor on their theory that they prevailed on the only issue the superior court had ruled on — the unenforceability of the 1992 shareholder agreement. Arguing that they were the prevailing parties, they also moved for an award of attorney’s fees and costs.

The superior court issued an “Order of Final Judgment” in 2002; the order ended the litigation per the parties’ settlement agreement, dismissed all claims with prejudice, and stated that Miller, Drum, and Sourdough were the prevailing parties in the first part of the dispute. The order also stated that “[although it is not possible to infer at this stage who would have prevailed on what issues at the second trial, this court finds that whether there was an enforceable agreement was clearly one primary issue in the case. On that issue, plaintiffs prevailed.”

After hearing oral argument, the superior court issued an order addressing attorney’s fees and costs; it held that although Miller and Drum had prevailed on one issue at trial, the court could not find that only one party prevailed in the ensuing settlement. The court therefore awarded Miller and Drum attorney’s fees of $9,504, fifteen percent of the attorney’s fees they had incurred through the end of trial, and awarded no attorney’s fees to Miller and Drum for “phase two” of the ease, after trial.

Miller and Drum’s attorney submitted a cost bill for Rule 79 costs totaling $163,553.57. Citing Rule 79(f)(15), the cost bill included the receiver’s fees and the fees charged by her attorney as “other costs allowed by statute.” Those fees and expenses apparently totaled more than $120,000 as of February 2002. The superior court held that all receivership expenses were to be paid by Sourdough, and should not be taxable to either party. The court found that Miller and Drum were only entitled to Rule 79 costs incurred through the end of the trial. After referring the cost bill to the clerk of court for a cost hearing, the superior court awarded Miller and Drum $5,524.59 in costs. The attorney’s fees and cost awards were reduced to final judgment, and have been satisfied.

Miller, Drum, and Sourdough appeal the superior court’s order regarding attorney’s fees and costs. For the purposes of this appeal, we refer to the appellants collectively as “Sourdough.” Although the order from which Sourdough appeals also includes a ruling on attorney’s fees, Sourdough only challenges the superior court’s failure to require Riley and the Schachles to bear the receivership fees and expenses as litigation costs taxable under Rule 79.

III. DISCUSSION

A. Standard of Review

Normally we review a trial court’s Rule 79 award of litigation costs for an abuse of discretion; demonstrating an abuse of discretion requires a showing that the award “was arbitrary, capricious, manifestly unreasonable, or improperly motivated.” The dispositive issue here, however, is whether the settlement agreement permits receivership expenses to be awarded as Rule 79 costs. This issue turns on contract interpretation. We apply our independent judgment to matters of contract interpretation.

B. The Settlement Agreement Bars Sourdough’s Claim that Receivership Expenses Should Be Paid by Riley and the Schachles as Litigation Costs Taxable Under Rule 79.

Sourdough advances multiple reasons to support its contention that the superior court erred by failing to order Riley and the Schachles to bear the receivership expenses as litigation costs under Rule 79. Most, if not all, of its reasons implicate the merits of the parties’ disputes and the propriety of ordering a receivership. Thus, Sourdough argues that Riley and the Schachles should pay the receivership expenses as Rule 79 litigation costs because they were the proponents of the receivership and the receivership was improper and improvident. It likewise argues that the receivership was compelled by Riley and the Schachles’ claim that the 1992 shareholder agreement was enforceable. It argues that because that claim was based on what it calls “unsubstantiated [and] embellished allegations” and because the superior court ruled in Sourdough’s favor by holding that the 1992 shareholder agreement was unenforceable, the receivership was improper.

Sourdough similarly claims that the receivership was intended to sequester Sourdough’s assets, that the receivership conferred no benefit on Sourdough, and that the receivership was improperly continued. Sourdough further argues that Riley and the Schachles acted with improper motives, and that they “wrongfully necessitated” the receivership.

In support of its claim of error, Sourdough cites cases from other jurisdictions in which courts taxed the receiver’s expenses to the party responsible for the receivership when the appointment of the receiver was held to be erroneous, or when the party compelled the receivership based on unsubstantiated claims. Sourdough also argues that Rule 79 allows parties to recover receivership expenses as litigation costs.

As Riley and the Schachles correctly assert, these potential grounds for relief are precluded by the settlement agreement. That agreement ended the litigation and disposed of all claims arising from the lawsuit, “any matters that could have been asserted in the Lawsuit,” and “any actions taken pursuant to and in furtherance of [the] Agreement.” The grounds Sourdough raises for awarding these costs would have required the superior court to dive back into the merits of the parties’ disputes, some of which raised potentially complex and vigorously contested factual issues. That course would have forced the parties to litigate the merits of many of the substantive issues that they were attempting to resolve by entering into the settlement agreement. When the parties entered into the settlement agreement they intended to end the litigation, not prolong it. The timing of the agreement, on the eve of the second trial, suggests that the parties intended a universal settlement of all remaining disputes, many of which revolved around Sourdough’s attempts to terminate or modify the receivership. Consequently, the principal arguments Sourdough advances for finding error are completely unavailing and are barred by the settlement agreement. If Sourdough wanted to litigate these issues, it should not have entered into the settlement agreement.

Although its appellate briefs are largely devoted to elaborating on the arguments discussed and rejected above, Sourdough’s opening brief also seems to argue that the superior court should have awarded the receivership expenses against Riley and the Schachles simply because they were litigation costs recoverable under Rule 79. Sourdough’s opening brief completely fails to address the real question inherent in such an argument: whether section 9 of the settlement agreement has the effect of precluding a Rule 79 award of the receivership expenses against Riley and the Schachles. Riley and the Schachles discuss that question in their appellees’ brief and Sourdough’s reply brief contains a short response. Sourdough there argues that the parties did not truly “agree” that the corporation would bear the costs of the receivership because section 9 came from a provision included in the superior court’s order appointing the receiver. That order provided that the receiver should provide notice before “transferring corporate funds ... to pay for her receivership fees.” Sourdough therefore asserts in its reply brief that the settlement agreement only specifies that the receiver would be paid by the corporation because the parties could not, and did not, modify the court order. It also contends that “there is no probative evidence of any agreements that the Corporation pay any litigation costs and in fact the same was specifically reserved for a post-litigation cost application in the Settlement Agreement Stipulation filed with the [cjourt.”

Section -8 of the settlement agreement provides in part:

Attorneys’ Fees and Costs. Any party may file with the Superior Court a motion seeking an award of attorneys’ fees under Rule 82 and an award of costs under Rule 79. Nothing in this Agreement is intended to foreclose an award of Rule 82 attorneys’ fees or Rule 79 costs. In deciding any motion for Rule 82 attorneys’ fees and any motion for Rule 79 costs, the Superior Court may consider, as it deems appropriate, the results achieved through the Lawsuit as well as the outcome provided for in this Agreement.

Section 9 of the settlement agreement provides:

Receivership. If Sourdough buys the shares Riley, Schachle Sr. and Schachle Jr. own as is provided in Section 2 above, or if Sourdough buys the shares Miller and Drum own as is provided in Section 3 above, the receivership shall automatically terminate without further order of the Superior Court upon the closing of the purchase transaction. The Receiver shall retain sufficient funds of the corporation to pay all expenses of the receivership and the Receiver shall then transfer all other assets, books and records of the corporation to the persons who are assuming responsibility for the corporation. The Receiver shall file a final report and accounting with the Superior Court, and upon the approval of the final report and accounting, the Superior Court shall enter an appropriate final judgment terminating the Lawsuit. If neither of the stock purchases contemplated by Section 2[or] Section 3 occurfs], the receivership shall continue until it is terminated by order of the Superior Court.

(Emphasis added.)

The controlling question is which section controls. Is it section 9' — which deals with the receivership expenses — or is it section 8 — which reserves to the parties an opportunity to seek Rule 82 attorney’s fees and Rule 79 litigation costs?

A settlement agreement that fulfills basic contract principles is binding on the parties to the agreement. Sourdough claims that it only agreed to include section 9 because of the presence of a similar provision in a court order. But this is not a valid reason for either misinterpreting the section or excusing Sourdough from the effect of the provision. Sourdough does not attack the validity of the settlement agreement or section 9; it does not claim that the settlement agreement is unenforceable or is invalid or that duress, coercion, or fraud caused Sourdough to enter into the agreement. The settlement agreement’s inclusion of a provision consistent with a provision in the superior court’s order appointing the receiver does not nullify Sourdough’s (and Miller and Drum’s) assent to the settlement agreement. Nor does it excuse Sourdough from abiding by the terms of a valid settlement agreement.

When interpreting a contract, such as the settlement agreement in this case, it is our duty to give effect to the intentions of the parties. To determine their intentions, we look to the words of the contract and any extrinsic evidence regarding the parties’ intentions when they entered into the contract.

We read section 9 to be the more specific provision with regard to receivership expenses. Section 9 specifies that upon termination, the receiver “shall retain sufficient funds of the corporation to pay all expenses of the receivership and the Receiver shall then transfer all other assets, books and records of the corporation to the persons who are assuming responsibility for the corporation.” Section 8 provides that the parties may seek litigation costs under Rule 79, but says nothing about receivership expenses. We therefore read the general reservation in section 8 to be the less specific provision with respect to receivership expenses. Section 9 clearly enough allocates those expenses to the corporation, one of the parties in the lawsuit, and one of the signatories to the settlement agreement.

Sourdough has not convinced us that section 8, rather than section 9, governs the receivership expenses. Sourdough has not referred us to any extrinsic evidence that would compel or support a different interpretation of sections 8 and 9. The settlement agreement stipulation, contrary to Sourdough’s contention on appeal, provides no assistance in interpreting the terms of the agreement. That an earlier order is similar to section 9 does not convince us, as Sourdough contends, that the parties intended to allow the superior court to award the receivership expenses against some of the parties as a litigation cost. To the contrary, it would be remarkable to think that parties entering into a settlement agreement on the eve of trial would mutually agree that the court could award the very large receivership expenses against individual shareholders. Given the buy-out scheme underlying the settlement agreement, the presumption that the receivership benefitted the corporation, and the parties’ knowledge of the expense of the receivership, we see no basis for thinking that the parties intended to treat these expenses as an awardable Rule 79 cost. That is especially so if resolution of the cost application would have required the superior court to resolve the merits of claims which the parties thought they were settling on the eve of trial.

We therefore hold that the settlement agreement bars Sourdough’s claim of error. Our holding precludes Sourdough’s argument that because the receivership was improper and improvident, Riley and the Sehachles should bear the receivership expenses. This holding makes it unnecessary for us to decide generally whether receivership expenses are recoverable as allowable costs under Rule 79.

IV. CONCLUSION

We therefore AFFIRM the superior court’s order declining to tax the receivership expenses as Rule 79 litigation costs.

      . Rule 79(a) entitles "the prevailing party” to recover certain litigation costs “necessarily incurred in the action.” Rule 82 generally allows the prevailing party to recover partial attorney's fees.

      . Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002); Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001).

      . Holderness v. State Farm Fire & Cos. Co., 24 P.3d 1235, 1237-38 (Alaska 2001).

      . Dickerson v. Williams, 956 P.2d 458, 463 (Alaska 1998).

      . Exxon Corp. v. State, 40 P.3d 786, 793 (Alaska 2001).

      . Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp., 33 P.3d 1156, 1162 (Alaska 2001).

      . As a matter of contract construction, "specific terms and exact terms are given greater weight than general language.” 5 Margaret N. Kniffin, Corbin on Contracts § 24.23, at 253 (1998) (quoting Restatement (Second) of Contracts § 203(c) (1981)); see also McGary v. Westlake Investors, 99 Wash.2d 280, 661 P.2d 971, 974 (1983) (enbanc) (stating that specific language of lease addendum must prevail over general terms of lease provision).

      . The relevant words of the stipulation ("the parties may move for costs”) are no more specific than section 8 of the settlement agreement.

      . Our reliance on the settlement agreement also makes it unnecessary to decide what effect AS 10.06.643(c) might have on this appeal. That statute provides that the compensation of a receiver appointed to manage the affairs of a corporation undergoing dissolution "shall be paid out of the assets of the corporation and unless otherwise agreed shall be fixed by the court.”


author: COATS, Chief Judge. MANNHEIMER, Judge,

text:
    STATE of Alaska, Petitioner, v. Jung Ho YI, Respondent.
    No. A-8430.
    Court of Appeals of Alaska.
    Feb. 20, 2004.

      Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Petitioner.
    David Henderson, Law Offices of David Henderson, Bethel, for Respondent.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

It is a misdemeanor offense to purchase, sell, or barter bear parts. Bethel, Alaska, is a “damp” community where it is legal to possess alcohol for one’s personal use, but it is a felony offense to buy, sell, or trade alcohol. The defendant in this case, Jung Ho Yi, traded two bottles of Crown Royal Whiskey for a bear gallbladder which was offered by undercover Alaska State Trooper Gary Paeolt. Approximately three weeks later, Yi engaged in another similar transaction with Trooper Paeolt. When the State charged Yi with these criminal offenses, Yi defended on the ground of entrapment. Yi contended that, although he knew that selling of gallbladders or whiskey was illegal, he reasonably believed, based in part on Trooper Pacolt’s representations, that a trade (or exchange of gifts) was lawful. Superior Court Judge Dale O. Curda found that Yi established the defense of entrapment. The State petitioned for review and we granted the petition. We now reverse Judge Curda’s ruling.

Factual and procedural background

During January of 2002, Trooper Paeolt was assigned to spend three days in Bethel as part of an undercover operation to apprehend persons engaged in illegal buying and selling of bear gallbladders. The operation was set up in response to information, reported by the Alaska Department of Fish and Wildlife, that at least one restaurant in town had bought or bartered bear gallbladders in violation of the law. During this operation Trooper Paeolt attempted to sell or barter a bear gallbladder in at least six different restaurants in Bethel.

On January 18, Trooper Paeolt and Officer Betty Williams, from the Quinhagak Police Department, entered the Front Street Cafe dressed as civilians. This restaurant was the first that they selected. The two officers were the only patrons in the restaurant at the time. The two officers ordered dinner. Trooper Paeolt then noticed a man, later identified as Yi, who sat down to eat at a nearby table. Yi appeared to be an employee of the restaurant as he frequently went back into the kitchen.

Trooper Paeolt then engaged Yi in some small talk for about five or ten minutes. Most of the conversation revolved around the fact that both men were from Anchorage. At this point Trooper Paeolt removed a bear gallbladder from his shirt pocket and asked Yi if he was interested in buying. Yi responded that he did not want to buy it and that it was illegal. Trooper Paeolt said “no problem,” and put the gallbladder back in his pocket. Trooper Paeolt then asked Yi if he knew where he could get some alcohol.

It is only at this point that Trooper Pa-colt’s and Yi’s testimonies differ. According to Trooper Paeolt, Yi then asked to see the gallbladder again. And, after Paeolt handed it to him, Yi asked Paeolt if he was interested in trading the gallbladder for some alcohol. Trooper Paeolt replied that a trade would “be fine.” Trooper Paeolt testified that he never indicated to Yi that such a trade was legal. According to Yi, after Paeolt asked where to get alcohol, he only told Paeolt that he had some for his own personal use. Yi testified that Trooper Paeolt first brought up the idea of trading alcohol for the gallbladder. Yi admitted to readily agreeing to this transaction, which he characterized as a gift exchange. Yi also testified that he got the impression from Trooper Pacolt that such an exchange would be legal. Yi does not claim that he knew Trooper Pacolt was a police officer at that time. Officer Williams also testified but her testimony was not helpful in clearing up these conflicting accounts.

From this point on, the facts are uncontested. Yi had an employee of the cafe bring Trooper Pacolt a paper bag containing two bottles of Crown Royal whiskey. Yi then proceeded to staple the bag shut. Yi also said that he would pay for Trooper Pacolt’s dinner as part of the deal.

Before Trooper Pacolt left the cafe, he told Yi that he might have more gallbladders in the future and asked if Yi might be interested. Yi said no, but stated that he might know some people who would be.

On February 12, Trooper Pacolt returned to the Front Street Cafe alone, this time wearing a tape-recording device. Trooper Pacolt had applied for and received a Glass warrant in order to record his conversation with Yi. Trooper Pacolt had another bear gallbladder with him at this time. Pacolt sat down to have dinner. Yi came out, talked with him, and took his order. Trooper Pa-colt then told Yi that he had another gallbladder and showed it to him. He then asked Yi if he was interested in trading again “like last time.” Yi indicated that he was interested, this time trading three bottles of vodka for the gallbladder. Yi again paid for Trooper Paeolt’s dinner..

The State indicted Yi on two felony counts of sale of liquor without a license and charged him by information with two misdemeanor counts for purchasing parts of a big game animal.

Yi filed a motion to dismiss the indictment on the ground that he had been entrapped by the police. In an evidentiary hearing on the motion conducted by Judge Curda, Yi, Trooper Pacolt, and Officer Williams testified. Following the hearing, Judge Curda ruled that Yi had established the defense of entrapment.

Judge Curda specifically did not resolve the conflict in the testimony about whether it was Trooper Pacolt or Yi who initiated the plan to trade the bear gallbladder for alcohol. He concluded that it was unnecessary to resolve this factual conflict. Rather, Judge Curda concluded that, “from an objective point of view, a reasonable person would not have believed the trade of alcohol for bear gallbladders was illegal.” He pointed out that Yi initially refused to purchase the gallbladder. Judge Curda noted that Trooper Pacolt was the person who originally brought up the subject of obtaining alcohol. He concluded that Yi was not a bootlegger and that, if Trooper Pacolt had asked to purchase the alcohol, Yi would have refused. Judge Curda concluded that Yi only committed the offense because Yi believed that the transaction was legal: “[W]hile Yi acknowledges [that] he was aware [that] selling or buying either alcohol or the bear gallbladder would be illegal, he believed [that] an even trade would not be illegal. The court finds reasonable people in the State of Alaska, and specifically in Bethel, would agree.” Judge Curda concluded that, because of Trooper Pacolt’s persistence in pursuing Yi, and because of Yi’s confusion over the legality of making a trade, Trooper Pacolt’s conduct fell “below an acceptable standard for the fair and honorable administration of justice.”

The law of entrapment

Alaska’s entrapment statute is codified at AS 11.81.450:

In any prosecution for an offense, it is an affirmative defense that, in order to obtain evidence of the commission of an offense, a public law enforcement official or a person working in cooperation with the official induced the defendant to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense. Inducement or persuasion which would induce only a person engaged in an habitual course of unlawful conduct for gain or profit does not constitute entrapment.

Entrapment is a defense to criminal charges, and the purpose of the defense is to deter law enforcement activities that go beyond the bounds of sound public policy. Because AS 11.81.450 defines entrapment as an affirmative defense, a defendant bears the burden of establishing it by a preponderance of the evidence. Entrapment is an issue for the court to decide rather than the jury. Alaska employs an objective test for entrapment. This means that “the court considers the nature of the police activity involved, without reference to the predisposition of the defendant.”

We have previously stated:

In order to prevail on [an entrapment] defense, [the defendant is] required to prove that the police employed fundamentally unfair or dishonorable practices calculated to induce someone to commit the crime in question so that he might be arrested and prosecuted for the offense .... And while [the defendant does] not need to negate a predisposition to engage in similar conduct, [the defendant must show] that the dishonorable police practices were a substantial factor in inducing him to commit the charged offenses' — that his commission of the offenses was “the direct result of inducement by law enforcement officials.”

We conclude that Judge Curda erred in concluding that Yi established the defense of entrapment. In his findings, Judge Curda was equivocal in condemning the police conduct. At one point, he stated that he did not believe that Trooper Pacolt’s actions were egregious or that it was the trooper’s intent to entrap Yi into committing a crime. Looking objectively at Trooper Pacolt’s conduct, the evidence does not show that the trooper engaged in fundamentally unfair or dishonorable practices which were calculated to induce someone to commit a crime, other than a person who was willing. Judge Curda did not resolve whether Trooper Pacolt or Yi first suggested a trade of the bear gallbladder for the alcohol. Even if Trooper Pacolt suggested the trade, this conduct, looked at objectively, does not constitute a fundamentally unfair or dishonorable practice calculated to induce an innocent person to commit a crime. Even if Trooper Pacolt had suggested the exchange and even if he had suggested that it would be lawful to trade the alcohol for the bear gallbladder, it would be unreasonable for Yi to rely on this representation. As Yi admitted, he had no suspicion that Trooper Pacolt was a police officer or was anyone other than an ordinary visitor to Be-thel.

Judge Curda’s finding that the trooper’s actions were fundamentally unfair and that they induced Yi to commit the offenses appears to rest on his finding that reasonable people in the State of Alaska, and specifically in Bethel, would agree that trading the alcohol for the bear gallbladder would be legal, and therefore Yi was reasonable in concluding that his actions were legal. Other than Yi’s statement that he thought that a trade would be legal, there is no support for this finding in the record. And, looked at objectively, this finding does not appear to be reasonable. Yi conceded that he knew that buying the gallbladder would be illegal. He also conceded that he knew that selling alcohol would be illegal. It does not seem reasonable to conclude that, by merely eliminating money from the transaction and trading alcohol for the bear gallbladder, the transaction would be legal. If this were the rule, a person could legally sell alcohol or sell a bear gallbladder by merely structuring the transaction as a trade. By engaging in two illegal acts, the parties could make the transaction legal.

Judge Curda’s finding that Yi was reasonable in concluding that he could legally trade the alcohol for the bear* gallbladder was fundamental to Judge Curda’s ruling. Since we conclude that the finding is clearly erroneous (because it is not supported by the record), we conclude that Judge Curda’s finding that Yi was entrapped was an abuse of discretion. We accordingly reverse Judge Curda’s ruling that Yi established the defense of entrapment.

REVERSED.

MANNHEIMER, Judge,

with whom STEWART, Judge, joins, concurring.

I agree that there was no entrapment here. I write separately to address one aspect of the superior court’s decision.

On page 6 of its written decision, the superior court asserted that Yi was entrapped into committing the offense of bootlegging because, even though people know that the sale of alcohol is illegal in the dry and damp areas of this state, “reasonable people in the State of Alaska, and specifically in Bethel,” would nevertheless mistakenly believe that it remained legal for them to trade alcohol for goods (as opposed to trading alcohol for money).

The superior court made no finding that the trooper misrepresented the legality of such a trade to Yi. Instead, the superior court appears to have adopted the position that any widespread community mistake concerning the law will support a claim of entrapment, even when law enforcement officials do nothing to encourage the defendant to adopt or rely upon this mistaken view of the law.

Alaska has adopted the objective theory of entrapment. Under the objective theory of entrapment, the purpose of the defense is to identify instances in which “the police used dishonorable or unacceptable means” to induce someone to commit a crime, instances in which “police conduct falls below an acceptable standard for the fair and honorable administration of justice”.

Thus, under AS 11.81.450, entrapment is defined as law enforcement conduct — '“persuasion or inducement” by law enforcement officers or those working in cooperation with them. Under the statute, police-instigated persuasion or inducement constitutes entrapment if it “would be effective to persuade an average person[, who was otherwise not] ready and willing, to commit the offense”.

Here, the superior court appears to have found that Yi and many other members of the Bethel community were indeed “ready and willing” to barter alcohol for goods, with essentially no “persuasion or inducement” other than a simple request or suggestion, because they all shared the same mistaken belief that this conduct was legal. I have no idea whether the superior court’s assertion is true. But even if it is, widespread misunderstanding of the law will not support a defense of entrapment, any more than an individual defendant’s misunderstanding of the law will support a defense of entrapment, when law enforcement officers have done nothing to foster this misunderstanding or to persuade the defendant to rely upon this misunderstanding.

      . 5 Alaska Administrative Code (AAC) 92.200(b)(2) ("A person may not purchase, sell, [or] barter ... any part of a bear, except an article of handicraft made from the fur of a black bear, an unsealed marten ... or an unsealed beaver, land otter, lynx, wolf, or wolverine.”).

      . See AS 16.05.920(a); AS 16.05.925(a); 5 AAC 92.200(b)(2).

      . State v. Glass, 583 P.2d 872 (Alaska 1978).

      . AS 04.11.010(a).

      .5 AAC 92.200(b)(2).

      . Evans v. State, 550 P.2d 830, 843-45, 845 n. 51 (Alaska 1976).

      . AS 11.81.900(b)(1); Bachlet v. State, 941 P.2d 200, 206 (Alaska App.1997).

      . Folsom v. State, 734 P.2d 1015, 1017 (Alaska App.1987).

      . Grossman v. State, 457 P.2d 226, 229 (Alaska 1969).

      . 21 Am.Jur.2d Criminal Law § 265 (1998).

      11. Washington v. State, 755 P.2d 401, 405 (Alaska App.1988) (quoting Anchorage v. Flanagan, 649 P.2d 957, 961-62 (Alaska App.1982)).

      . Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978); Grossman v. State, 457 P.2d 226, 229 (Alaska 1969); Jacobs v. State, 953 P.2d 527, 531 (Alaska App.1998). See also the legislative commentary to AS 11.81.450, found in 1978 Senate Journal, Supp. No. 47 (June 12), p. 138.

      . Jacobs v. State, 953 P.2d 527, 531 (Alaska App.1998), quoting Pascu v. State, 577 P.2d 1064, 1067 (Alaska 1978).


author: Justice MARTINEZ Justice COATS

text:
    Leslyn CARLSON, Petitioner, v. Kimberly Sue FERRIS and Man Made Pizza, Inc., d/b/a Dominos Pizza, Respondents.
    No. 02SC395.
    Supreme Court of Colorado, En Banc.
    Dec. 1, 2003.

      Gradisar, Trechter, Ripperger, Roth & Croshal, James M. Croshal Pueblo, Colorado, Attorneys for Petitioner.
    Ireland, Stapleton, Pryor & Pascoe, P.C., Richard L. Shearer, Robert S. Anderson, Denver, Colorado, Paul S. Edwards & Associates, Fotios Burtzos, Colorado Springs, Colorado, Attorneys for Respondents.
   Justice MARTINEZ

delivered the Opinion of the Court.

In this case, we determine whether the language of section 42-4-237(2), 11 C.R.S. (2003), requires that a driver of an automobile wear both a lap and a shoulder belt. We hold that section 42-4-237(2) requires that drivers and front seat passengers of automobiles that have been equipped with a lap and a shoulder belt pursuant to federal motor vehicle safety standards must wear both the lap and the shoulder belt in order to comply with the statute.

I.

FACTS AND PROCEEDINGS BELOW

Leslyn Carlson filed suit against Kimberly Ferris after the two were involved in an automobile accident. Carlson alleged that Ferris caused the accident when she failed to yield the right of way at a stop sign. At the time of the accident, the driver’s seat of Carlson’s vehicle was equipped both with an automatic shoulder belt and a separate lap belt that had to be manually fastened. Prior to trial, Carlson stipulated that she was wearing the automatic shoulder belt, but not the separate manual lap belt, at the time of the accident.

In her defense, Ferris sought to show that Carlson was in violation of section 42-4-237(2) because she was wearing only one of the two available safety belts. Subsection two requires that drivers and front seat passengers in a motor vehicle equipped with a safety belt system wear a “fastened safety belt” while the vehicle is being operated on a street or highway. The subsection reads:

Unless exempted pursuant to subsection (3) of this section, every driver of and every front seat passenger in a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway in this state.

§ 42-4-237(2).

Because Carlson was not wearing her manual lap belt at the time of the accident, Ferris asked the trial court to instruct the jury that Carlson’s failure to wear the lap belt mitigates damages. Specifically, Ferris requested Civil Jury Instruction 5:2A, failure to mitigate by nonuse of a safety belt. Ferris argued that the language of subsection seven of 4244237 entitled her to such an instruction. Section 42-4-237(7) states, in relevant part:

Evidence of failure to comply with the requirement of subsection (2) of this section shall be admissible to mitigate damages with respect to any person who was involved in a motor vehicle accident and who seeks in any subsequent litigation to recover damages for injuries resulting from the accident.

The trial court ruled that because Carlson was wearing at least one of the available safety belts, she was in compliance with the statute. Thus, the trial court refused to give the requested instruction 5:2A on nonuse of a safety belt. Additionally, the trial court precluded Ferris from making any reference to Carlson’s failure to wear her lap belt as evidence of a statutory violation.

On appeal, Ferris contended the trial court erred when it refused jury instruction 5:2A and precluded Ferris from arguing that Carlson’s failure to wear her lap belt constituted a statutory violation. The court of appeals agreed with Ferris and held that the plain meaning of section 42-4-237(2) “requires drivers to fasten all safety belts included in a vehicle’s safety belt system in order to defeat a claim of failure to mitigate under § 42-4-237(7).” Carlson v. Ferris, 58 P.3d 1055, 1058 (Colo.App.2002): The court of appeals reasoned that the definition of “safety belt system” contained in section 42-4-237(l)(b) includes a combination of lap and shoulder belts, but does not specify the various usage options that may satisfy the requirement that one wear a “fastened safety belt.” The court of appeals insisted that this language reveals the General Assembly’s intent to require that a driver and every front seat passenger utilize the complete “system.” Therefore, the court of appeals reversed the trial court judgment and remanded the ease for a new trial.

We granted certiorari in this case to interpret the language of section 42-4-237(2). Section 42-4-237(2) reads:

Unless exempted pursuant to subsection (3) of this section, every driver of and every front seat passenger in a motor vehicle equipped with a safety belt system shall wear a fastened safety belt while the motor vehicle is being operated on a street or highway in this state, (emphasis added)

The question raised on review is whether the court of appeals erred in holding that section 42-4-237(2) requires that a driver of a vehicle that has been equipped with a lap and a shoulder belt pursuant to federal motor vehicle safety standards must wear both the lap and the shoulder belt.

II.

ANALYSIS

Although both parties agree that the language of section 42-4-237(2) is clear and unambiguous, each party differs as to what the General Assembly intended and what the statute requires. After reviewing each party’s arguments, we do not find either party’s interpretation to be correct.

A.

ARGUMENT OF THE PARTIES

Carlson’s plain meaning interpretation of section 42-4-237 hinges on the distinction she draws between the statutory definition of the term “safety belt system” and the words “fastened safety belt.” In section 42-4-237(l)(b), the General Assembly defined safety belt system as:

a system utilizing a lap belt, a shoulder belt, or any other belt or combination of belts installed in a motor vehicle to restrain drivers and passengers, which system conforms to federal motor vehicle safety standards.

The General Assembly next stated that drivers and front seat passengers of motor vehicles “equipped with a safety belt system shall wear a fastened safety belt.” § 42-4-237(2). Carlson asserts that because the language of section 42-4-237(2) differentiates between a “safety belt system” and “a fastened safety belt,” the legislature did not intend that individuals utilize an entire safety belt system. Rather, Carlson argues, a driver or front seat passenger of an automobile complies with the statute when wearing at least one of the belts in a safety belt system.

Ferris has come to a markedly different conclusion in regard to the plain meaning of section 42-4-237(2). Unlike Carlson, Ferris draws no distinction between the terms “safety belt system” and “fastened safety belt.” Instead, Ferris further argues the term “fastened safety belt” refers both to a fastened safety belt and to fastened safety belts. For this interpretation, Ferris relies upon section 2-4-102, 1 C.R.S. (2003), which provides that the “singular includes the plural, and the plural includes the singular.” Thus, Ferris reads the requirement of a “fastened safety belt” to mean “fastened safety belts.”

Ferris insists that this plain meaning interpretation is supported by an understanding that the purpose behind the statute is to conform to “federal motor vehicle safety standards.” § 42-4-237(l)(b). Ferris argues that because the state of Colorado does not conduct its own safety belt testing or implement regulations governing safety belts, Colorado is wholly reliant on the federal guidelines and standards related to safety belt use and manufacture. To bolster this point, Ferris details the history of the federal government’s efforts to enlist the assistance of the states in creating seat belt laws which function to promote seat belt use and further driving safety. According to Ferris, this rich history coupled with the voluminous applicable federal regulations on the subject make clear that the federal government intended to- create rigorous safety belt standards in order to reduce traffic death and injuries. Thus, given Colorado’s adherence to federal motor vehicle safety standards, Ferris claims that it would be absurd to allow an individual to wear only one safety belt when two are available for their particular seat.

B.

PLAIN MEANING

We construe the statute as a whole to understand the meaning of particular terms and to give effect to the legislative intent. Our interpretation of the plain language of section 42-2-237(2) leads us to the conclusion that the General Assembly, by requiring drivers and front seat passengers to wear a “fastened safety belt,” intended that drivers and front seat passengers wear both a lap and a shoulder belt when a vehicle has been equipped with both belts pursuant to federal motor vehicle safety standards.

In matters involving statutory interpretation, the duties of a reviewing court are clear. The court has a fundamental responsibility to interpret statutes in a way that gives effect to the General Assembly’s intent in enacting that particular statute. People v. Luther, 58 P.3d 1013, 1015 (Colo.2002); Martin v. People, 27 P.3d 846, 851 (Colo.2001); Anderson v. Watson, 953 P.2d 1284, 1290 (Colo.1998). Such is best achieved by looking at the language of the statute and giving the words their plain and ordinary meaning. Luther, 58 P.3d at 1015; Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo.2000). If the statutory language unambiguously sets forth the legislative intent, other rules of statutory interpretation need not be employed. People v. Notion, 63 P.3d 339, 344 (Colo.2003). It is essential that courts refrain from rendering opinions that are inconsistent with the legislative intent. City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1249 (Colo.2000). Therefore, courts must construe the statute as a whole in order to give “consistent, harmonious and sensible effect to all its parts.” Luther, 58 P.3d at 1015; United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152, 1157 (Colo.2000).

When construing section 42-4-237 as a whole, the meaning of subsection two becomes clear. An analysis of the various sub-parts of the statute show the General Assembly intended that drivers and front seat passengers wear both a lap and a shoulder belt while occupying a motor vehicle that has been equipped with both belts in order to meet federal motor vehicle safety standards.

As both parties recognize, it is necessary to determine the meaning of the terms “safety belt system” and “fastened safety belt.” Carlson sees these two terms as distinctly different, whereas Ferris and the court of appeals view the terms as synonymous. However, Carlson, Ferris, and the court of appeals all assume that a “safety belt system” consists of the various safety belts that exist for a particular seat. We do not view the assumption that a “safety belt system” consists of the various safety belts that exist for a particular seat as well founded.

In section 42-4-237(l)(b), the General Assembly defined safety belt system as:

a system utilizing a lap belt, a shoulder belt, or any other belt or combination of belts installed in a motor vehicle to restrain drivers and passengers, which system conforms to federal motor vehicle safety standards, (emphasis added)

The plain language of this section indicates that “safety belt system” refers to all of the safety belts that have been installed in a motor vehicle to restrain drivers and front seat passengers. The language of this subsection reflects that a motor vehicle may contain any number, type, or combination of belts within its “safety belt system.” The term “safety belt system” does not mean the belts at a particular seat. Rather, a “safety belt system” is comprised of the many belts contained within a motor vehicle to restrain drivers and front seat passengers.

This definition of “safety belt system” helps us discern the meaning of “safety belt” as contained within the term “fastened safety belt.” In describing the belts that may exist in a “safety belt system,” the General Assembly simply listed, “a lap belt, a shoulder belt, or any other belt or combination of belts.” § 42-4-237(l)(b). The General Assembly did not refer to any of these particular belts as a “safety belt,” and it did not specifically define the term “safety belt.” The General Assembly’s use of “safety belt,” “safety belt system,” and “belt” implies that the term “safety belt” has a meaning that is distinct from the term “safety belt system” and from the types of belts listed in the definition of “safety belt system.” Thus, a “safety belt” is not the system of many belts contained within a motor vehicle, nor does the term simply refer to one of those many belts.

The term “safety belt” has a meaning that is not only distinct from the term “safety belt system,” but also from the types of belts listed in the definition of “safety belt system.” We do not “presume that the legislature used language ‘idly and with no intent that meaning should be given to its language.’ ” See People v. J.J.H. 17 P.3d 159, 162 (Colo.2001), quoting McMillin v. State, 158 Colo. 183, 405 P.2d 672 (1965). Rather, the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings. See Mason v. People, 932 P.2d 1377, 1380 (Colo.1997). Thus, had the General Assembly intended that a driver or a front seat passenger of an automobile that has been equipped with both a lap and a shoulder belt pursuant to federal motor vehicle safety standards wear only one of the belts described in the definition of “safety belt system”, it would have simply required that a single “belt” be worn in order for an individual to comply with section 42-4-237(2). The General Assembly would not have included the word “safety” in the term “fastened safety belt.” Similarly, had the General Assembly intended that a driver or a front seat passenger wear an entire “system,” it would have worded section 42-4-237(2) to require that drivers and front seat passengers wear a “fastened safety belt system.”

In section 42-4-237(2), the General Assembly purposefully worded the requirement to wear a “fastened safety belt” in a way that differed from its wording of the term “safety belt system.” Pursuant to the definition of “safety belt system,” we discern that a “safety belt,” like “safety belt system,” may refer to a particular belt or a combination of belts. However, unlike “safety belt system,” the term “safety belt” does not refer to all the belts installed in a motor vehicle to meet federal motor vehicle safety standards. We conclude that because the language of section 42-4-237(2) does not include the term “system,” the General Assembly intended “safety belt” to refer to the belts that have been installed in a particular seat pursuant to federal motor vehicle safety standards. Additionally, because the General Assembly did not state that a driver or a front seat passenger must simply wear a “belt” when occupying a motor vehicle, we conclude that the inclusion of the word “safety” signals that drivers and front seat passengers in vehicles that have been equipped with both a lap and a shoulder belt pursuant to federal motor vehicle safety standards must wear the lap and the shoulder belt in order to comply with section 42^1-237(2).

C.

SUPPORT FOR PLAIN MEANING

Federal law governing occupant crash protection and seat belt assemblies support our interpretation of “safety belt.” As we explain in greater detail below, in section 42-4-237(l)(b) the General Assembly indicated that a motor vehicle’s “system” must conform to federal motor vehicle safety standards. Federal regulations regarding occupant crash protection and seat belt assemblies are found in 49 C.F.R. § 571.208 (2003) and 49 C.F.R. § 571.209 (2003) respectively. Throughout these provisions, the federal government exhaustively details the many seat belt assemblies that are required in specific motor vehicles and in particular seats in specific motor vehicles. Although the federal regulations do not specifically use the term “safety belt system,” it nonetheless appears that both the federal regulations and our state statute use the word “system” to refer to all of the belts that are required in a particular vehicle. In addition, the regulations do not require that a driver or a front seat passenger wear an entire “system.” Instead, the federal regulations governing “safety belt systems” simply detail the various belts that are required for particular motor vehicles.

Viewing the terms “safety belt” and “safety belt system” in light of federal motor vehicle safety standards helps us understand the plain meaning of the term “safety belt” to be the portion of the “safety belt system” required for a particular seat. We conclude that, to comply with the requirement to wear a “fastened safety belt,” a driver or front seat passenger does not have to wear a motor vehicle’s entire “safety belt system” nor is it proper for those individuals to wear only one belt if both a lap and a shoulder belt have been installed. Instead, in vehicles in which driver’s and front seat passenger’s seats have been equipped with both a lap and a shoulder belt pursuant to federal motor vehicle safety standards, drivers and front seat passengers must wear both the lap and the shoulder belt in order to comply with section 42-4-237(2).

Our plain meaning interpretation of section 42-4-237(2) is also consistent with our review of various provisions contained within section 42-4-237. First, the legislature indicated in section 42-4-237(l)(b) that a vehicle’s “safety belt system” must conform to federal motor vehicle safety standards. The federal government, in enacting standards that govern occupant crash protection, details the regulatory purpose as:

[to] reduce the number of deaths of vehicle occupants, and the severity of injuries, by specifying vehicle crashworthiness requirements in terms of forces and accelerations measured on anthropomorphic dummies in test crashes, and by specifying equipment requirements for active and passive restraint systems.

49 C.F.R. § 571.208 (2003). As the National Highway Traffic Safety Administration relates:

Belts are approximately 50% effective for preventing fatality in crashes in which motorists would otherwise die, so raising belt use saves lives. It is estimated that raising use to 79% from 75% prevented 1,000 deaths that would have otherwise occurred in 2003. Since seat belts saved an estimated 14,000 motorists in 2002, we would predict that belts will have prevented 15,000 deaths by the end of 2003. In saving lives and preventing injuries, belt use saves billions of dollars in costs to society annually, mainly through preventing the loss in productivity and reducing the medical costs that would otherwise occur. At least 15,-000 lives will be saved in each future year if belt use is maintained at 79% or higher.

These statistics reflect how necessary it is to public safety and welfare that individuals wear proper safety belts. In conforming to federal motor vehicle safety standards Colorado has, through the mandatory use provisions of section 42-4-237, intended to increase public safety and welfare through the proper use of safety belts. Given this fact, it would be incongruous for the General Assembly to find that a driver or front seat passenger is in compliance with the statute when only wearing a shoulder belt if a lap belt has also been installed. The General Assembly’s reliance on federal standards in section 42-4-237(l)(b) reveal its intent to require a driver and every front seat passenger to wear a lap and a shoulder belt in order to comply with the statute.

Subsection four of section 42-4-237 also illuminates the General Assembly’s intent in enacting the mandatory use provision. Section 42-4-237(4) makes nonuse of a fastened safety belt a class B traffic infraction, thus subjecting drivers and front seat passengers to a penalty should they not wear all the safety belts installed at their particular seat. As this court noted in the Anderson case, this penalty provision comports with the General Assembly’s goal of promoting proper safety belt use. Anderson, 953 P.2d at 1290.

In addition to subjecting drivers and front seat passengers to a penalty for non-use of a safety belt, the General Assembly allows evidence of a failure to comply with the provisions of subsection (2) to be admissible for purposes of mitigation. § 42-4-237(7). Hence:

By decreasing the amount of pain and suffering damages in proportion to injuries attributable to seat belt nonuse, the General Assembly sent a signal to drivers and front seat passengers to buckle up.

Anderson, 953 P.2d at 1290. This subsection again reflects the General Assembly’s intent to create a law which would serve to increase safety belt use.

Finally, subsection (8) offers yet another example of the General Assembly’s intent in establishing the safety belt systems mandatory use law. In this subsection, the General Assembly requires:

The office of transportation safety in the department of transportation shall continue its program for public information and education concerning the benefits of wearing safety belts and shall include within such program the requirements and penalty of this section.

§ 42-4-237(8). Such language reveals the General Assembly’s desire to educate the public about the importance of safety belt use in order to further its ultimate goal of increasing public safety through the decrease of motor vehicle accident deaths and injuries due to the non-use of safety belts.

The General Assembly’s intent in enacting section 42-4-237 is apparent when reading the statutory subsections as a whole. The General Assembly endeavored to create law that would promote and increase safety belt use in a manner consistent with federal motor vehicle safety standards. Given this intent, we find it consistent that the General Assembly intended to require that the driver of an automobile and every front seat passenger in a vehicle that has been equipped with both a lap and a shoulder belt pursuant to federal motor vehicle safety standards wear both the lap and the shoulder belt.

III.

CONCLUSION

We hold that the plain and unambiguous language of section 42-4-237(2) requires that drivers and front seat passengers of automobiles that have been equipped with a lap and a shoulder belt pursuant to federal motor vehicle safety standards must wear both the lap belt and the shoulder belt in order to comply with the statute. The court of appeal’s judgment is affirmed. This case is remanded to the court of appeals to return the case to the trial court for a new trial in accordance with: 1) the opinion of the court of appeals on other issues; and 2) this opinion.

Justice COATS dissents.

Justice COATS

dissenting:

The majority rests its holding on the assertion that the statutory mandate to wear “a fastened safety belt” while operating a motor vehicle plainly means that the operator must wear two separate and independently fastened safety belts whenever they are available. Because I consider this interpretation of not only the words “a fastened safety belt,” but also the term “plain meaning,” to be so contrived as to literally cry out for some challenge, I respectfully dissent.

On one point the majority and I agree: The language of the statute is plain and unambiguous, see maj. op. at 511, and therefore sets forth the legislative intent without reliance upon rules of statutory interpretation, see maj. op. at 508. We simply have diametrically opposed understandings of what that plain meaning is. For my part, a requirement that one wear a fastened safety belt, upon pain of both adverse evidentiary and penal consequences, is satisfied when one fastens, as designed, a single safety belt, no matter how many other safety belts might have been available for fastening. While I readily accept that it may be due to my own shortcomings, I confess that I am at a loss to comprehend how a belt, which the majority concedes is singular, becomes plural when modified by the word “safety.” It seems clear enough that such an adjective would normally be understood as describing the nature of the belt — not the number of belts— at issue.

I also readily concede that the plain meaning of a word or phrase does not exist apart from the context in which it is used and any special definition it is given. But the term “safety belt” is not specially defined by the legislature or otherwise used as a term of art. It must therefore be accorded its commonly understood meaning. And taken in context, “safety belt” is juxtaposed, in the same sentence, to a “safety belt system,” which is expressly defined either as a single belt or a combination of belts conforming to federal safety standards. Although the statutory mandate carrying a sanction for noncompliance is triggered only by driving a vehicle with such a “safety belt system,” the General Assembly has not required, as it could easily have done, that the entire safety belt system, or even some particular portion of it, be used in any particular way. Rather it specifically requires only that the driver of a vehicle with a safety belt system “wear a fastened safety belt.”

As the majority notes, the statute not only prescribes a duty of care but defines a traffic infraction, with a penal sanction for its violation. As a matter of fundamental fairness, such a proscription must be drawn with sufficient clarity and specificity to permit individuals to conform their conduct to its dictates. Particularly in this context, I fear that the majority’s explanation that the plain meaning of “one” is really “two” sounds, at least on its face, so outlandish as to evoke the suggestion of legal artifice and undermine confidence in our protestations that we are merely acknowledging the only reasonable meaning of, and therefore the legislative intent embodied in, the statutory language.

Because I believe the clear and unambiguous language chosen by the General Assembly requires only one fastened safety belt, and cannot be reasonably understood to require independently fastened, separate lap and shoulder belts, I respectfully dissent.

      . The nonuse of safety belt instruction reads:
      If you find that the plaintiff, (name), has had noneconomic damages for pain and suffering, then you must consider whether the defendant,(name), has proved (his)(her) affirmative defense of plaintiffs failure to mitigate or minimize damages due to the nonuse of a safety belt. Damages for pain and suffering, if any, caused by plaintiff's failure to use an available safety belt cannot be awarded to the plaintiff. You may only consider the plaintiffs failure, if any, to use an available safety belt in relation to the plaintiffs claim for pain and suffering damages.
      This affirmative defense is proved if you find by a preponderance of the evidence that the plaintiff failed to use a safety belt.
      If you find that this affirmative defense has not been proved by a preponderance of the evidence, then you shall make no deduction from the plaintiffs damages for pain and suffering for the nonuse of a safety belt.
      On the other hand, if you find that this proposition has been proved by a preponderance of the evidence, then you must determine the amount of pain and suffering damages caused
      by the plaintiff's failure to use a safety belt. If you award noneconomic damages, this amount must be deducted from that award.
      CJI-Civ.4d 5:2A

      . Despite its ruling on 42-4-237(7) and jury instruction 5:2A, the trial court allowed the jury to consider whether Carlson was comparatively negligent in failing to wear her lap belt. Following trial, the jury returned a verdict in favor of Carlson and awarded her $56,125 in damages. However, the jury found Carlson to be 18.3% comparatively negligent, thus reducing her damage award to $45,854.13. Carlson cross appealed the trial court’s determination that the jury could consider nonuse of the lap belt as comparative negligence. The court of appeals reversed on this point, relying upon their determination in Churning v. Staples, 628 P.2d 180, 181 (Colo.App.1981), that the logic advanced in Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973) compels the result that nonuse of a safety belt does not establish contributory negligence. We denied certiorari on the issue.

      . For a detailed history of the federal government's efforts in requiring safety belt manufacture and use, see Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000).

      . Federal regulations concerning occupant crash protection are detailed in, 49 C.F.R. § 571.208 (2003). Regulations regarding seat belt assembly are found in 49 C.F.R. § 571.209 (2003).

      . The federal government's concern with promoting motor vehicle safety through the use of safety belts is also reflected in grant provisions in which states are given specific amounts of grant money for complying with the Secretary of Transportation's traffic safety program. 23 U.S.C.A. § 153 (2003) details how slates can receive grant money for implementing programs that: educate citizens about safety belts; train law enforcement officers to enforce safety belt laws; and monitor safety belt compliance rates. Consequently, the federal government defines "safety belt” in this provision as "with respect to other passenger vehicles, an occupant restraint system consisting of integrated lap shoulder belts.” 23 U.S.C.A. § 153(i)(4)(B).
      It is also of note that in March of 2003, the Secretary of Transportation authorized $40.7 million in grants to the states to promote safety belt use. Colorado received $793,172 from this program. See U.S. Transportation Secretary Mineta Announces Grants of $40.7 Million to Increase Safety Belt Use, (March 21, 2003), available at http://www.dot.gov/affairs/ nhtsa0703.htm.

      . US Department of Transportation, National Highway Traffic Safety Administration: Technical Report, Safety Belt Use in 2003, DOT HS 809646 (September 2003), available at http://www-nrd.nhtsa.dot.gov/pdi/nrd-30/ NCSA/Rpls/2003/809646.pdf.