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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Afognak Joint Venture v. Old Harbor Native Corp. (01/26/2007) sp-6093
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| AFOGNAK JOINT VENTURE, | ) |
| ) Supreme Court No. S- 11912 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-97-3380 CI |
| ) | |
| OLD HARBOR NATIVE CORP., | ) |
| and AKHIOK-KAGUYAK, INC., | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6093 - January 26, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: R. Collin Middleton and Robert
J. Sato, Middleton & Timme, P.C., Anchorage,
for Appellant. Matthew D. Jamin, Matthew R.
St. John, and Karen L. Lambert, Jamin Schmitt
St. John, Kodiak, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This is the second appeal in a dispute between various
Kodiak area Native corporations over ownership of claims
resulting from the Exxon Valdez oil spill. The Old Harbor and
Akhiok-Kaguyak corporations belonged to a joint venture, along
with eleven other corporations, which they formed in order to
receive land on Afognak Island from the federal government. Old
Harbor and Akhiok withdrew from the joint venture shortly after
the Exxon Valdez oil spill of March 24, 1989. Upon withdrawal,
they received shares of joint venture land and paid their shares
of the joint ventures debts in satisfaction of all claims against
the joint venture. In the 1990s the remaining members of the
joint venture claimed oil spill settlement funds, including funds
for damage to the land partitioned to Old Harbor and Akhiok,
which the joint venture then refused to share with Old Harbor and
Akhiok. The two corporations sued the joint venture to recover a
proportionate share of the Exxon claim. The superior court ruled
in favor of Old Harbor and Akhiok. The joint venture appeals.
Because the superior court correctly determined
ownership of the Exxon claim and correctly awarded a share of the
Exxon claim to Old Harbor and Akhiok, and because the joint
ventures remaining arguments are without merit, we affirm the
superior courts judgment that the Exxon claims should be divided
between the parties. We remand to the superior court for that
division.
II. FACTS AND PROCEEDINGS
A. Events leading up to Old Harbor I1
Thirteen Kodiak-area Native Corporations (joint
venturers) formed the Afognak Joint Venture (Joint Venture or
AJV) in 1982 in order to receive lands from the federal
government, as provided in Public Law 96-487 1427(c) (1980):
The Secretary of the
Inter
ior
shall
conve
y the
surfa
ce
estat
e on
Afogn
ak
Islan
d [as
defin
ed in
an
earli
er
secti
on] .
. .
to a
joint
ventu
re
provi
ding
for
the
devel
opmen
t of
the
surfa
ce
estat
e . .
. .
The
conve
yance
shall
be
made
as
soon
as
pract
icabl
e
after
there
has
been
filed
with
the
Secre
tary
of
the
Inter
ior a
duly
execu
ted
joint
ventu
re
agree
ment
with
provi
sions
for
shari
ng of
and
entit
lemen
ts in
costs
and
reven
ues
of
such
ventu
re as
provi
ded
in
this
subse
ction
[so
that
each
corpo
ratio
ns
land
share
is
based
on
its
popul
ation
and
acrea
ge].
The
conve
yance
shall
not
indic
ate
the
respe
ctive
inter
ests
of
each
of
the
corpo
ratio
ns in
the
surfa
ce
estat
e
conve
yed
but
such
inter
ests
shall
be as
provi
ded
in
this
subse
ction
which
shall
be
incor
porat
ed by
refer
ence
into
the
conve
yance
.
One of the joint venturers, Afognak Native Corporation,
managed the Joint Venture. According to the Joint Venture
agreement, the Joint Venture had several purposes: to receive the
lands from the federal government, to develop them in the best
interests of the joint venturers, and to manage fish and wildlife
as required by the conveyance. The Joint Venture agreement
indicated that the joint venturers intended to own the property
as tenants in common and not as partners. However the Joint
Venture, rather than the individual venturers, had authority to
sell Joint Venture property and to determine when to distribute
revenue to the venturers.
The oil tanker Exxon Valdez hit Bligh Reef on March 24,
1989, spilling eleven million gallons of oil into the North
Pacific; some of this oil reached Joint Venture land at some time
between March 31, 1989 and the end of the summer of 1990. In
April 1989 Akhiok-Kaguyak Corporation and Old Harbor Native
Corporation (the Corporations) gave notice of their withdrawal
from the Joint Venture. At the time of their withdrawal, the
Corporations owned an undivided 18.37% interest in both the land
and net assets of the Joint Venture (Old Harbor owned 12.38% and
Akhiok owned 5.99%). According to the Joint Venture agreement,
the Corporations immediately ceased to be members of the Joint
Venture when they gave notice of their withdrawal; their land
share was calculated according to values on the dates of their
withdrawals and their shares of Joint Venture net assets were
calculated from the last day of the month immediately preceding
their withdrawal, i.e., March 31, 1989.
The parties negotiated a partition of land and assets
and a release, which they signed in July 1991. The release
indicates that the partition agreement completely and
satisfactorily fulfills all of [the Joint Ventures] obligations
to the Corporations, including the accounting and payment
required in 6.01 of Exhibit C to the Joint Venture agreement:
The Joint Venture shall be obligated to pay to the withdrawing
joint venturer its percentage interest in the net assets [of the
Joint Venture] within one year of the date of the notice of
withdrawal . . . . The net assets of the Joint Venture are the
assets less the liabilities of the Joint Venture excluding
commercial timber, land and value of improvements computed on an
accrual basis. As part of the settlement and release, Old Harbor
paid $128,941 and Akhiok paid $62,429 as their shares of the
Joint Ventures negative value.2
The Joint Venture applied for Exxon spill settlement
funds in 1993 from Alyeska Pipeline Service Company and later
from Exxon, funds that included amounts based on the land already
ceded to the Corporations. The Corporations requested a
proportionate share of the settlement in 1996, but the Joint
Venture denied the request. Other members of the Joint Venture
who withdrew after the Joint Venture filed its Exxon claims were
to receive shares of the oil spill damage claims based on their
respective ownership interests in the Joint Venture. The
Corporations sued the Joint Venture in September 1997, claiming a
portion of the Exxon claims.3 The superior court granted summary
judgment to the Joint Venture based on the release, and the
Corporations appealed.4
B. Summary of Old Harbor I
In Old Harbor I we reversed the superior courts grant
of summary judgment to the Joint Venture and remanded the case
for further proceedings.5 In Old Harbor I we held that the
members of the Joint Venture continued to owe each other a
fiduciary duty during the period between the Corporations
withdrawal in late April 1989 and the partition in July 1991.
During that time, we held, the Joint Venture stood in the
position of a trustee with respect to the Ventures assets because
the Corporations were no longer members of the Joint Venture but
were joint owners of the assets.6 The Joint Ventures fiduciary
duty included a duty of disclosure regarding the status of the
Exxon claim.7 We also held that there was a genuine issue of
material fact as to whether the parties made a mutual mistake of
fact when they omitted the Exxon claim from the accounting of the
Joint Ventures assets during the partition.8
The three elements of mutual mistake of fact meriting
reformation are: (1) the mistake relates to a basic assumption of
the contract; (2) the mistake has a material effect on the agreed
exchange; and (3) the party seeking relief does not bear the risk
of mistake.9 Regarding the first element, we concluded that the
alleged mistake related to a basic assumption of the contract,
since the settlement agreements goal was to resolve all of the
[Joint Venture] and [the Corporations] rights arising from [the
Corporations] withdrawal from the Joint Venture, which included
rights to the Exxon claim.10 For the second element, we concluded
that the mistake was material to the transaction.11 For the
third, we stated that nothing in the settlement agreement
transferred the risk of a mutual mistake to the Corporations . .
. .12 Since we were reviewing summary judgment to the Joint
Venture, we viewed all the evidence in the light most favorable
to the Corporations. That included Old Harbors evidence that it
expected as early as February 1990 to receive about twelve
percent of the Exxon claim and Akhioks evidence that the Joint
Venture never informed it during the partition negotiations that
it intended to retain all of the Exxon claims.13
In Old Harbor I we noted that the trial court had not
made a finding of fact regarding the date of accrual of the Exxon
claim.14 Therefore, it was impossible to determine whether the
Joint Ventures duty to disclose the Exxon claim arose before or
after the Corporations withdrawal from the Joint Venture.
However, we held that regardless of when the Exxon claim arose,
the Joint Ventures fiduciary duty of disclosure continued until
partition, and the Joint Venture had a duty to inform the
Corporations of the status of the claim.15 We also noted that in
light of this holding we did not need to resolve a further
factual conflict between the parties: They both claimed to own
the land at the time the claims accrued, the Corporations as
tenants in common with other joint venturers, and the Joint
Venture as sole title holder.16
Consequently, the questions for the superior court on
remand were: (1) Given the existence of a duty to disclose the
status of the Exxon claim up until the July 1991 partition, did
the Joint Venture discharge it? (2) Given the parties failure to
address the Exxon claim in the partition agreement, did the
parties make a mutual mistake of fact meriting reformation of the
agreement?
C. Summary of Proceedings in the Superior Court
After remand from Old Harbor I and before trial, the
parties stipulated to several facts, including the following:
No oil from the Exxon Valdez Oil Spill
contacted AJV land on or before March 31,
1989, because the oil had not yet reached the
Kodiak Island Group.
For the AJV lands that were oiled, the vast
amount of the oil was not present by the end
of the summer of 1990.
During a bench trial before Superior Court Judge Sen K.
Tan, the parties presented live testimony from ten witnesses, and
submitted depositions from eight witnesses, and introduced
approximately 370 exhibits. The superior court found that the
Joint Venture members held the land as tenants in common. The
superior court also relied upon our observation in Old Harbor I
that, although the Corporations ceased to be members of the Joint
Venture upon notice of withdrawal, they continued to own
interests in Joint Venture land and other assets.17
The superior court found that, although the parties did
not think about the [Exxon] claim in the context of the partition
discussions and the documents that finalized their agreement,
they were certainly aware of a potential oil spill damage claim
during the period between withdrawal and partition. The court
also found that the parties knew that the Joint Venture was an
absent class member in the Exxon suit, although the parties
dispute whether the Joint Venture found out about its class
membership before partition.18 Finally, the court found that
within a year of the Corporations withdrawal, the Afognak Native
Corporation (whose managers were the same people managing the
Joint Venture) demonstrated that it felt its own land damage
claim had value by participating in discovery with other class
attorneys and modifying its direct action claims against Exxon to
include damages for the direct oiling of its land. (The Afognak
Native Corporation had originally claimed damage only to
archaeological sites during oil-spill cleanup.)
The superior court noted that [t]he [Exxon] oil spill
case extended the notions of damages that could be recovered.
This was because land owners such as the Joint Venture were not
required to show actual damage. Under the distribution plans of
both the Alyeska and Exxon settlements, a claimants land was
valued on the day of the oil spill (March 24, 1989), and its
value before the spill was compared to its value after the spill
on that day. Using March 24 as the date for assessing damage was
simply a convenience, since any distribution plan tying
recoveries to when a property was actually first oiled would have
been an administrative nightmare. Additionally, a landowner did
not have to show that its land had actually been oiled; the land
only had to be located within the oil spill area, which included
all of Afognak Island.19 Thus a landowner claim such as the Joint
Ventures had only two elements: ownership of the land on March
24, 1989 and location in the oil spill area.
The superior court applied the three-part mistake of
fact test set out in Old Harbor I, and concluded that the parties
made a mutual mistake of fact in not realizing . . . the
existence of the oil spill damages claim [during the partition
negotiations]. Holding that this mistake merited reformation of
the settlement agreement, the superior court awarded 18.37% of
the Exxon claim to the Corporations. In light of this ruling,
the superior court did not reach the issue of breach of fiduciary
duty.
The Joint Venture now appeals.
III. STANDARD OF REVIEW
We review the superior courts factual findings for
clear error.20 We will find clear error only if, after a thorough
review of the record, we come to a definite and firm conviction
that a mistake has been made.21
Questions of contract interpretation are generally
questions of law which we review de novo; but fact questions are
created when the meaning of contract language is dependent on
conflicting extrinsic evidence.22 We can affirm a decision of the
superior court on any basis supported by the record.23 Finally,
unless a factual or legal error by the superior court is
inconsistent with substantial justice, the courts judgment will
not be disturbed.24
IV. DISCUSSION
A. The Superior Court Did Not Err when It Determined that
the Corporations Owned a Portion of the Exxon Claim.
The Joint Venture asserts that the superior courts
judgment should be reversed because it is based on the incorrect
assumption that Old Harbor I decided who owned the land and who
owned the claims. The Joint Venture argues that because of this
incorrect assumption the superior courts decision lacks adequate
factual support. In response, the Corporations maintain that
ownership of the Exxon claim is irrelevant to the superior courts
decision, since the mutual mistake the parties made was in
failing to discuss and allocate the Exxon claim even though the
parties were operating under an implicit and explicit assumption
that all the parties rights would be resolved.
Under Article VI, 6.01 of Exhibit C to the Joint
Venture agreement, the Joint Venture is required to account for
its net assets on an accrual basis as of the last day of the
month preceding the date of withdrawal. Because the withdrawal
was in April, the accounting date was therefore March 31, 1989.
Under the agreement, the Joint Venture is required to pay the
withdrawing corporation the corporations percentage interest in
the Joint Ventures net assets within a year of notice of
withdrawal plus eighteen percent interest. According to the
Joint Venture, the Exxon claims accrued to the Joint Venture
after the Corporations withdrawal. Therefore, the Joint Venture
maintains, the Corporations had no right to share in the Joint
Ventures Exxon claims. The Joint Venture argues that even though
the only date listed as an eligibility requirement for the Exxon
claim is the day of the Exxon spill, March 24, 1989, the claim
did not actually accrue until the oil hit the Joint Venture land
sometime after March 31, 1989.
We agree with the Corporations: It is immaterial
whether the Exxon claim accrued before or after the Corporations
withdrawal. If the claim accrued before withdrawal, it was a
Joint Venture asset subject to distribution to the Corporations
just like any other asset by virtue of 1.05 of the Joint Venture
agreement:
All revenues (including proceeds resulting
from the disposition or destruction of Joint
Venture property) realized and all costs,
charges and expenses incurred in conducting
Joint Venture business will be distributed or
shared by the joint venturers in the manner
provided in Section 1427(c) of Public Law 96-
487 [by which the venturers individual
interests were calculated]. . . . Funds not
required for working capital purposes may be
distributed to the joint venturers at such
times as designated by the Board. Management
of the Joint Venture will establish a system
to effect the foregoing, which system will
have as an objective the minimization of
working capital operating funds committed by
each joint venturer.
(Emphasis added.)
If the claim accrued after withdrawal, it is covered by
our decision in Old Harbor I. There, we held that after the
Corporations withdrew in April 1989, the Joint Venture stood in
the position of a trustee because the Corporations were no longer
members of the Joint Venture but were joint owners of the assets.25
In other words, the Joint Venture and the Corporations held the
land and assets as tenants in common between April 1989 when the
Corporations withdrew and July 1991 when the land and assets were
partitioned.26 Accordingly, if the claim accrued after
withdrawal, it would belong to the Corporations as tenants in
common whose title was held in trust by the Joint Venture.
For these reasons, we conclude that the superior court
did not err when it determined that the Corporations owned a
portion of the Exxon claim.
B. The Superior Court Did Not Err in Ruling that the
Parties Made a Mutual Mistake of Fact.
The Joint Venture initially argues that its only
mistake was in failing to predict at the time of partition that
in a few years it would have a large Exxon claim. It argues that
the parties did not intend to allocate assets of minimal value,
which would have included the Exxon claim at the time of
partition, since the Alyeska and Exxon settlements were still
years away when the Corporations signed the partition agreement
and no one could have predicted that actual damage to the land
would not be required for an Exxon claim. The Corporations
respond that, given the parties knowledge of a potential claim
during partition, their real mistake was in failing to fulfill
their commitment to consider all the AJVs rights and divide such
accordingly.
We agree with the Corporations. No party claimed to be
unaware during partition negotiations of other Exxon claims or
that the Joint Venture lands had been oiled. The Joint Ventures
subjective valuation of the Exxon claim as small or even zero is
irrelevant27 for, as we held in Old Harbor I, the settlement
agreement purported to resolve all of the [Joint Venture] and
[the Corporations] rights arising from [the Corporations]
withdrawal from the [Joint Venture]. 28 We conclude that the
superior court did not err in ruling that the parties made a
mutual mistake of fact.
C. The Superior Court Did Not Err in Dividing the Exxon
Claim Between the Parties.
In Old Harbor I we held that the mutual mistake of fact
alleged by the Corporations, if proven, would merit reformation
of the settlement agreement and release, since it satisfied the
three-part test for mutual mistake of fact: (1) the parties
failure to discuss the Exxon claims undermined the basic
assumption that the release would address all of the Joint
Ventures assets; (2) the Exxon claims, worth millions of dollars,
were material to the transaction; and (3) nothing in the
settlement agreement transferred the risk of a mutual mistake to
the Corporations.29
According to the Joint Venture, reformation of the
partition agreement was inappropriate since the parties did not
reach an agreement on the Exxon claim and they did not have
identical views on the claims value during their partition
negotiations. The Joint Venture notes that [w]hile the
corporations may have believed AJV land to have been damaged, the
AJV did not. However, the parties did have a common intent to
account for all of their assets. The Joint Ventures argument
that one of the assets was insignificant does not change the goal
of the parties agreement, especially in light of the Joint
Ventures fiduciary duty to disclose the status of Joint Venture
assets including the Exxon claim during the period following
the Corporations withdrawal but prior to the completion of the
partition process.30
Nevertheless, upon reexamination of our holding in Old
Harbor I, we note that when using the term reformation we may
have misdirected the superior court on terminology, although not
on the law. According to the Restatement (Second) of Contracts
155, reformation is available to correct a mutual mistake of fact
when a contract fails to express the actual agreement between the
parties.31 That is, reformation would be strictly appropriate
where the parties had actually agreed to apportion the Exxon
claim and had merely failed to record it.32 In the present case,
by contrast, the superior court correctly concluded that the
parties mistake consisted of their failure to discuss the Exxon
claim at all. Here the courts power to reshape the contract is
expressed more clearly by 158 of the Restatement. According to
that section, in a case of mistake where neither damages,
avoidance of the contract, reformation, restitution, or other
remedies provided in Chapter 6 of the Restatement are available,
the court may exercise its equitable power to grant relief on
such terms as justice requires.33 Relief under these
circumstances may include supplying a term to the parties
agreement.34 We have previously expressed our willingness to
imply a contract term in order to conform a contract to the
evident intent of the parties.35 In this case, the parties
clearly intended, and the Joint Venture was required (on account
of its fiduciary duty towards the Corporations and by Article VI,
6.01 of Exhibit C to the Joint Venture agreement), to account for
and apportion all of the Joint Ventures assets. By awarding
18.37% of the Joint Ventures Exxon claim to the Corporations the
superior court gave effect to the reasonable expectations of the
parties.
While we conclude that the superior court did not err
in dividing the Exxon claim between the parties, as we noted
above the court had the power to grant relief on such terms as
justice requires.36 Because our earlier remand may have
incorrectly focused the courts and the parties attention on
reformation under 155, it is unclear whether the superior court
was aware of this power and whether the parties had a full
opportunity to litigate all issues under it. Accordingly, we
remand for the limited purpose of allowing the superior court to
consider whether the Joint Venture is entitled to a set-off for
any costs it incurred in obtaining compensation under the Exxon
claims.37
D. The Joint Ventures Remaining Arguments on Appeal Are
Without Merit.
The Joint Venture argues that the Corporations acted in
bad faith by not informing the Joint Venture of the Corporations
opinion that the Exxon claim had value. According to the Joint
Venture, the Corporations knowledge of the claims was superior to
the Joint Ventures because Old Harbor, representing a class of
landowners that included the Joint Venture, filed suit against
Exxon during or just before the period of partition negotiations.
But the superior court found that all of the parties were aware
of potential claims. The evidence supports this finding. The
Joint Venture also alleges numerous factual mistakes in the
superior courts findings. However, the Joint Venture does not
assert that any of these alleged mistakes is material to the
outcome of the case. In these circumstances, there is no basis
for reversal.38
V. CONCLUSION
The superior court correctly determined ownership of
the Exxon claim and the nature of the parties mistake in
partitioning their assets. Therefore, we AFFIRM the superior
courts judgment that the Exxon claims should be divided between
the parties. We REMAND so that the superior court may fix the
Corporations proportionate share of the Exxon claims. At that
time the court may consider whether the Joint Venture is entitled
to offset any costs it bore in pursuing the Exxon claims.
_______________________________
1 Old Harbor Native Corp. v. Afognak Joint Venture, 30
P.3d 101 (Alaska 2001) (Old Harbor I).
2 Id. at 104.
3 Id.
4 Id.
5 Id.
6 Id. at 106.
7 Id. at 107.
8 Id. at 107-08.
9 Id. at 108 (quoting Stormont v. Astoria Ltd., 889 P.2d
1059, 1061 (Alaska 1995)).
10 Id.
11 Id. The Joint Venture valued its share of the Exxon
claims, including punitive damages, at about $22 million. Id. at
104.
12 Id. at 108 (emphasis in original).
13 Id.
14 Id. at 106 n.17.
15 Id. at 106.
16 Id. at 109 n.31.
17 See id. at 106.
18 In February 1991, six months before the parties signed
the partition agreement, Superior Court Judge Brian Shortell
certified a class of real property owners affected by the spill,
which included the Joint Venture land. Old Harbor represented
the class.
19 In 1994 the U.S. District Court required as an element
of recovery that oil actually reached a property owners land.
However, neither the Alyeska settlement nor the Exxon settlement
required this, in Alyeskas case because it pre-dated the district
courts order, and in Exxons because the parties settled and the
court later approved a distribution plan like Alyeskas.
20 Alaska R. Civ. P. 52(a).
21 Hall v. TWS, Inc., 113 P.3d 1207, 1210 (Alaska 2005).
22 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000
n.1 (Alaska 2004).
23 Hall, 113 P.3d at 1210 (citing Rausch v. Devine, 80
P.3d 733, 737 (Alaska 2003)).
24 Alaska R. Civ. P. 61. See also Fairbanks North Star
Borough v. Rogers & Babler, 747 P.2d 528, 531 (Alaska 1987)
([E]ven if a finding of fact or conclusion of law is erroneous,
the mistake is not grounds for reversal if the finding or
conclusion is not necessary to the courts ultimate decision.).
25 Old Harbor I, 30 P.3d at 106. However, the court
explicitly declined to determine the nature of the interest
before withdrawal. Id. at 109 n.31.
26 See AS 34.15.130:
Except as provided in AS 34.15.110(b)
[presumption of tenancy in entirety where
husband and wife hold title] and AS 34.77.100
[community property trust], persons having an
undivided interest in real property are
considered tenants in common.
(Emphasis added.)
27 The claim is also suspect, considering the fact that
within a year of the partition, the people who managed both
Afognak Native Corporation and the Joint Venture modified Afognak
Native Corporations claim against Exxon to include damages for
oiling of the latters land.
28 30 P.3d at 108.
29 Id.
30 Id. at 107.
31 Restatement (Second) of Contracts 155 (1979).
32 Id. at cmt. b. See also Restatement (Second) of
Contracts, ch. 6, introductory note at 379 (Where, however,
because of a mistake of both parties as to expression the writing
fails to express an agreement that they have reached previously,
the appropriate relief ordinarily takes the form of reformation
of the writing to make it conform to their intention.).
33 Restatement (Second) of Contracts 158(2). See also
Restatement (Second) of Contracts,ch. 6, introductory note at 381
(The rules governing [mistake] have traditionally been marked by
flexibility and have conferred considerable discretion on the
court.).
34 Restatement (Second) of Contracts 158 cmt. c.
35 See, e.g., Ellingstad v. State, Dept of Natural Res.,
979 P.2d 1000, 1008 (Alaska 1999) (holding that where contract
silent court may supply reasonable term to fulfill parties
expectations). See also Rego v. Decker, 482 P.2d 834, 837 n.8
(Alaska 1971) (stating that apparent difficulties of enforcement
due to uncertainty of expression often disappear in light of
courageous common sense).
36 Restatement (Second) of Contracts 158(2).
37 See Edwards v. Alaska Pulp Corp., 920 P.2d 751, 754
(Alaska 1996) (noting that under common fund doctrine a litigant
. . . who recovers a common fund for the benefit of persons other
than himself or his client is entitled to a reasonable attorneys
fee from the fund as a whole). Accord Quinn v. State of
California, 539 P.2d 761, 764 (Cal. 1975) ([O]ne who expends
attorneys fees in winning a suit which creates a fund from which
others derive benefits, may require those passive beneficiaries
to bear a fair share of the litigation costs.).
38 Fairbanks North Star Borough v. Rogers & Babler, 747
P.2d 528, 531 (Alaska 1987) ([E]ven if a finding of fact or
conclusion of law is erroneous, the mistake is not grounds for
reversal if the finding or conclusion is not necessary to the
court's ultimate decision.).
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