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Williams v. Engen12/5/2003
I. INTRODUCTION
Alaska Civil Rule 27 gives a court limited powers to order production of evidence for a legal action that has not yet been filed. The rule has usually been read to allow early production only to preserve existing evidence - not to discover whether evidence exists. John Williams believed that he might have a claim for misrepresentation arising from a real estate transaction and wanted evidence to confirm his suspicions and identify the prospective defendant. Relying on Rule 27, Williams asked for an order compelling a mortgage company to produce a report, not otherwise available to him, containing the information he needed. The superior court declined to order production, applying the conventional meaning of Rule 27. Williams appeals, urging us to read the rule as allowing discovery of facts needed to frame a complaint. We find no exceptional circumstances in this case that would justify expanding the rule's usual limits, and thus affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Roger and Carmen Engen bought a home from the Estate of Vera Lowe. John Williams, a real estate agent associated with Re/Max of Juneau, represented the estate in the sale. As part of the transaction, the estate agreed to finance part of the Engens' purchase with a nine-month, $180,000, interest-free note.
Soon after the Engens signed the agreement, they discovered a crack in the home's foundation. They hired an engineer, John Cooper, who estimated that repairs would cost $125,000 to $200,000. Believing that this cost would prevent them from refinancing to pay off their $180,000 note, the Engens notified their attorney, who prepared a draft complaint alleging misrepresentation and failure to disclose required information. The draft complaint named as defendants the estate, Williams, and two partners of Williams at Re/Max of Juneau. After the defendants reviewed the Engens' proposed complaint, all parties agreed to mediate the dispute.
At the mediation, Williams and Re/Max made a combined offer to settle their share of liability for $25,000. Williams was to pay $10,937.50 of this amount. With this proposal on the table as their final settlement offer, Williams and Re/Max left the mediation proceeding, saying that they did not care how the Engens and the estate resolved their dispute. The estate and the Engens proceeded to settle, agreeing that the original sale would simply be rescinded, while the Engens would remain free to accept the $25,000 offer from Williams and Re/Max. The mediator recorded this oral agreement and adjourned proceedings until a date could be set for all the parties to convene and sign the final, written version.
Almost immediately after reaching this agreement, the Engens began having second thoughts about giving up the home, so they resolved to check for available refinancing. The estate evidently did not object to this change of heart. Williams soon heard that the Engens had applied for refinancing from Residential Mortgage. He contacted the company, and one of its employees confirmed that the Engens had applied for refinancing, supporting their application with a letter from their engineer, Cooper. The employee also said that Residential could not show him Cooper's letter until the refinancing closed. Williams then learned from his own attorney that Residential had agreed to refinance the Engens' home because Cooper's letter assured the company that the building was not in imminent danger and could be repaired after the refinancing agreement closed.
Nevertheless, two days after hearing this information, Williams met with the other parties and signed a final settlement agreement; the agreem
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