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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Danyelle D. Kimp v. Fire Lake Plaza II, LLC (3/5/2021) sp-7507

Danyelle D. Kimp v. Fire Lake Plaza II, LLC (3/5/2021) sp-7507

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  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, email  

                                                                                                                                

           corrections@akcourts.us.  



                        THE SUPREME COURT OF THE STATE OF ALASKA                                          



DANYELLE D. KIMP,                                                       )  

                                                                        )      Supreme Court No. S-17298         

                                  Appellant,                            )  

                                                                                                                                            

                                                                        )      Superior Court No. 3AN-17-04469 CI  

           v.                                                           )  

                                                                                                    

                                                                        )      O P I N I O N  

                                           

FIRE LAKE PLAZA II, LLC,                                                )  

                                                                                                                    

                                                                        )     No. 7507 - March 5, 2021  

                                  Appellee.                             )  

                                                                        )  



                                                                                                                   

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                     

                      Judicial District, Anchorage, Gregory Miller, Judge.  



                                                                                                                 

                      Appearances:                Danyelle  D.  Kimp,  pro  se,  Eagle  River,  

                                                                                                               

                      Appellant.              Gregory   R.   Henrikson,  Walker   &  Eakes,  

                                                  

                      Anchorage, for Appellee.  



                                                                                                            

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                             

                       and Carney, Justices.  



                                             

                       STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                    

                      Abusiness owner formed abrewing company withplans to openabrewpub  



                                                                                                                                              

in Eagle River. He signed a lease that provided rent-free access to a commercial unit for  



                                                                                                                                                    

a period of time to allow him to prepare the rental space prior to opening for business.  



                                                                                                                                              

But the brewing company encountered numerous delays during construction and did not  



                                                                                                                                                    

open for business as planned.  It also did not pay rent once the rent-free period ended.  


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After the property owner received no rent for several months, it entered the property and  



                    

changed the locks.  



                                                                                                                               

                    The business owner filed suit, claiming the property owner breached the  



                                                                                                                       

lease,  tortiously  interfered  with  a  business  relationship,  and  breached  the  implied  



                                                                                                                               

covenant of good faith and fair dealing.  The property owner counterclaimed that the  



                                                  

brewing company breached the lease.  



                                                                                                                                

                    On cross-motions for summary judgment, the superior court dismissed all  



                                                                                                                               

claims  against  the  property  owner  and  ruled  in  the  property  owner's  favor  on  its  



                                                                                                                     

counterclaim.  The court also denied the business owner's request to compel discovery  



                                                                                                                         

and awarded the property owner over $200,000 in damages. The business owner appeals  



                                                                                                                        

the superior court's grants of summary judgment, its denial of his motion to compel  



                                                                 

discovery, and its award of damages.  We affirm.  



                                  

II.       FACTS AND PROCEEDINGS  



                            

          A.        The Lease  



                                                                                                                              

                    In January 2016 Danyelle Kimp entered into a 66-month lease with Fire  



                                                                                                                      

Lake  Plaza II, LLC (Fire Lake) on behalf of Kimp's company, QUAKE! Brewing  



                                                                                                                   

Company, LLC (Quake).  Quake and Fire Lake were the parties to the lease agreement,  



                                                                                                                              

but the lease included a guaranty agreement between Kimp and Fire Lake that made him  



                                                                                                                                     

personally liable for Quake's failure to pay rent and any other violations of the lease.  



                                                                                                                            

The lease granted Quake rent-free limited possession of a commercial unit in Eagle River  



                                                                                                                          

for an initial six-and-a-half-month period - the "fixturing period" - allowing Quake  



                                                                             

to build out the space prior to opening a brewpub there.  



                                                                                                                               

                    The  lease required  Quake to  pay  rent monthly  upon  expiration  of the  



                                                                                                                            

fixturing period.  It also required Quake to conform its use of the space to specific rules  



                                                                                                                              

and regulations outlined in the lease.  Among these rules was a prohibition on uses that  



                                                                                                                           

would constitute a nuisance or unreasonable annoyance to other tenants in the plaza,  



                                                               -2-                                                         7507
  


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including the use of loudspeakers or other sound or light fixtures that could be heard or  



                              

seen outside of the unit.  



                                                                                                                            

                    The lease also outlined the conditions and remedies available to Fire Lake  



                                                                                                                        

in the event of default. Failure to pay rent when due was considered immediate grounds  



                                                                                                                               

for default.   For other violations, the lease required Fire Lake to give notice of the  



                                                                                                                                 

applicable lease provision that had been violated.  Quake would then have ten days to  



                                                                                                                                 

cure the violation before a default occurred.  A default under the lease triggered a set of  



                                                                                                                              

remedies available to Fire Lake "cumulatively or in the alternative."  Among these was  



                                               

the right to enter and relet the unit.  



                                                     

          B.        Events Leading To Litigation  



                                                                                                                             

                    Quake's leasehold interest began in February 2016.   In April and May  



                                                                                                                       

Kimp encountered delays in getting water shut off to the unit so he could perform  



                                                                                                                     

necessary  plumbing  work.                   Kimp  and  Fire  Lake's  property  management  company  



                                                                                                                            

initially agreed on a date in mid-to-late April to shut the water off, but one of the other  



                                                                                                                                

tenants in the plaza indicated this would be disruptive.  Further coordination around an  



                                                                                                                              

early May date also proved unsuccessful, as the parties could not agree on a time that  



                                                                                                                               

would work for Quake's plumber and the other tenants in the plaza.  Eventually, the  



                                  

water was shut off in mid-June.  



                                                                                                                              

                    The parties also coordinated around Quake's efforts to obtain a special land  



                                                                                                                                  

use permit from the Municipality of Anchorage.  In February 2016 Laura Cantrell, a  



                                                                                                                  

broker at the property management company, signed off on Kimp's permit application.  



                                                                                                                                 

The application stated that only recorded music, and no live music, would be played at  



                                                                                                                           

the brewpub.   In April Cantrell expressed some concern with building plans Kimp  



                                                                                                                          

submitted for approval that called for a stage and did not explain how Quake would  



                                                                                                                        

handle soundproofing.   Kimp responded that the stage was for a "possible 'future'  



                                                                                                        

development."  Cantrell reiterated that the permit application stated there would be no  



                                                               -3-                                                         7507
  


----------------------- Page 4-----------------------

                                                                                                                                  

live music, and voiced concerns that Kimp was planning to build a bar rather than a  



                                                                                                                       

brewpub.  She also highlighted the commercial unit's proximity to residential property  



                                                                                                                            

and the need to control noise levels within the establishment.  Kimp replied, "The stage  



                                                                                                                                

was always optional.  I do not have to build it."  He indicated he could always put "a  



                                                                        

fully developed performance stage" at another location.  



                                                                                                                     

                    The  Anchorage  Assembly  passed  a  resolution  approving  an  amended  



                                                                     

version of Quake's permit application.  One of the amendments was that "[l]ive music  



                                                                                                                             

and  amplified  sound  systems  [should]  cease  operations"  at  specified  hours.                                          The  



                                                                                                     

resolution also stated that Quake could not begin operations until it submitted relevant  



                                                                                                                      

portions of the rental agreement demonstrating Fire Lake's consent to the amended  



                                                                         

permit and Quake's proposed operations under it.  



                                                                                                                          

                    In   subsequent   communications   Kimp   outlined   for   Cantrell   lease  



                                                                                                                          

modifications required by the Assembly.  Among these were changes related to "noise  



                                                                                                               

being heard beyond [the]rented space" and "the allowable hours/terms for entertainment  



                                                                                                                               

and amplified events." Cantrell responded she would work on the modifications and get  



                                                              

back to Kimp.  But she never made any modifications.  



                                                                                                                                 

                    Quake did not pay any rent due under the lease other than prepayment of  



                                                                                                                                

the first month's  rent when  it  signed  the lease.                          Quake also  experienced  delays in  



                                                                                                                     

construction, and in a November 2016 meeting with Cantrell, Kimp requested additional  



                                                                                                                                 

time to complete the build-out and an extension of the rent-free fixturing period.  It is  



                                                                                                                     

disputed whether Cantrell orally agreed in that meeting to abate Kimp's rent payments  



                                                                                                                        

until construction was complete.  Kimp alleges that Cantrell refused to put her promise  



                         

to abate rent in writing.  



                                                                                                                             

                    In mid-December a veteran-owned non-profit allegedly agreed to help  



                                                                

Kimp finish construction.  The following day, however, Cantrell entered the property,  



                                                               -4-                                                         7507
  


----------------------- Page 5-----------------------

                                                                                                                           

posted a notice to vacate, and changed the locks.  She met Kimp at the property to allow  



                                                                                                     

him to obtain some personal items and personally handed him the notice.  



                                                                                                                           

                    The notice prohibited access to the unit until January 2017.   Fire Lake  



                                                                                                         

allowed representatives of the non-profit to enter the unit and assess requirements for  



                                                                                                          

completing construction.  But the next day the non-profit declined to do business with  



Kimp.  



                                                                                                                           

                    Fire Lake later sent Kimp a notice of default, outlining numerous lease  



                                                                                                                            

violations that Quake had committed; the notice gave Quake ten days to cure all non- 



                                    

access defaults.  It also stated:  



                                                                                                        

                              To prevent further liability, damages and liens, I have  

                                                                                                     

                    changed the locks, and I amexercising Landlords [sic] Rights  

                                                                                                         

                    to utilize Alternative means to protect Landlord's rights and  

                                                                                  

                    protect the property from further Tenant negligence.  



                                                                                                             

                              You are currently insisting on access and engaging a  

                                                                                          

                    NEWcontractor to install another $300,000 in improvements  

                                                                                                     

                    per your text message to me yesterday . . . . [U]ntil tenant  

                                                                                                          

                    remedies all existing non-access defaults listed above in the  

                                                                                                         

                    required time allotment, the premises will remain locked and  

                                                                                                      

                    unavailable  for  access  by  Tenant  and  any  persons  under  

                                   

                    Tenant's direction.  



          C.        Proceedings  



                                                                                                                         

                    A few weeks after Fire Lake locked Kimp out of the unit, Kimp filed a  



                                                                                                                   

complaint  in  superior  court  alleging  that  Fire  Lake  breached  the  lease,  tortiously  



                                                                                                                     

interfered with a prospective business relationship, and breached the implied covenant  



                                                                                                                             

of good faith and fair dealing.   Fire Lake counterclaimed for breach of contract and  



                                                                                 

breach of the implied covenant of good faith and fair dealing.  



                                                                                                                        

                    The parties filed three motions for summary judgment:  (1) Fire Lake's  



                                                                                                                            

motion on all of Kimp's claims; (2) Kimp's cross-motion on his claims; and (3) Fire  



                                                                                                    

Lake's motion for partial summary judgment on its counterclaim that Quake breached  



                                                               -5-                                                        7507
  


----------------------- Page 6-----------------------

 the lease.                           The superior court granted summary judgment in favor of Fire Lake on both                                                                                                                                                                                                     



 of its motions and denied Kimp's motion.                                                                                       



                                                   Kimp   filed   a   motion   to   set   aside   summary   judgment  based   on   newly  



 discovered text messages between himself and Cantrell purporting to show that the                                                                                                                                                                                                                                      



 parties intended a ten-day cure period for failure to pay rent.                                                                                                                                                                   The superior court denied                                                



 the motion.   



                                                   Fire Lake sought entry of final judgment and damages limited to its breach                                                                                                                                                                                



 of contract claim, effectively waiving any other damage claims that might require trial.                                                                                                                                                                                                                           



 Kimp opposed, claiming that Fire Lake was unjustly enriched by "over $200,000" due                                                                                                                                                                                                                                     



 to improvements he made to the unit.                                                                                                       Before the superior court issued its order for final                                                                                                                    



judgment,  Kimp  also  requested  a  hearing  on  an  earlier  motion  he   filed  to  compel  



 discovery.   The court denied the motion for a hearing, and entered final judgment for                                                                                                                                                                                                                                   



 $221,980.24 in damages the same day.                                                                                                                Kimp appeals.   



 III.                     STANDARDS OF REVIEW                                                        



                                                                                                                                                                                                                                                  1  

                                                   "We review grants of summary judgment de novo."                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                      "It is well-settled that  



                                                                                                                                                                                                                                                                                                                                   2  

                                                                                                                                                                                                                                                                                                                                       

 leases  are  contracts  and  should  be  interpreted  according  to  contract  principles." 



 "Contract interpretation is a question of law subject to de novo review.  When applying  

                                                                                                                                                                                                                                                                                                    



 the de novo standard of review, we apply our 'independent judgment to questions of law,  

                                                                                                                                                                                                                                                                                                                      

 adopting the rule of law most persuasive in light of precedent, reason, and policy.' "3  

                                                                                                                                                                                                                                                                                                                              



                          1                        Christensen v. Alaska Sales &Serv., Inc.                                                                                                            , 335 P.3d 514, 516 (Alaska 2014).                                                                    



                          2                        Rockstad v. Glob. Fin. & Inv. Co., 41 P.3d 583, 586 (Alaska 2002).  

                                                                                                                                                                                                                                                                                       



                          3                       Hahn v. GEICO Choice Ins. Co.                                                                                                     , 420 P.3d 1160, 1166 (Alaska 2018)                                                                                       



 (quoting ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114,  

                                                                                                                                                                                                                                                                                                                     

  122 (Alaska 2014)).                            



                                                                                                                                                              -6-                                                                                                                                                  7507
  


----------------------- Page 7-----------------------

                                                                                                                                                                               4  

 "We review the superior court's procedural decisions for abuse of discretion."                                                                                                    Finally,  



 "[the superior] court's determination of damages is a finding of fact which we affirm                                                                                                 



unless it is clearly erroneous.                                         But we apply our independent judgment in deciding                                                        



whether the [superior] court's award of damages is based on an erroneous application of                                                                                                          

 law."5  



 IV.	           DISCUSSION  



                                                                                                                                                                                              

                               Kimp makes four challenges to the superior court's rulings:  first, that the  



                                                                                                                                                                        

 superior court's grant of summary judgment against Kimp for breach of contract was  



                                                                                                                                                                                                

 improper; second, that it was error for the superior court to rule in Fire Lake's favor on  



                                                                                                                                                                                    

 Kimp's claims; third, that the superior court abused its discretion when it denied Kimp's  



                                                                                                                                                                                                

motion for a hearing to compel discovery; and fourth, that the superior court erred in its  



                                                                                                                        

 award of damages.  We discuss each of these issues below.  



                                                                                                                                                                                       

                A.	            The Superior Court Properly Granted Summary Judgment In Favor  

                                                                                                                                                                       

                               Of Fire Lake On Its Breach Of Contract Claim Against Kimp.  



                                                                                                                                                                                         

                               Whenthemoving party seekssummary judgment on an issuewhereit bears  



                                                                                                                                                                                             

 the burden of proof at trial, it must set forth undisputed material facts establishing that  



                                                                                                       6  

                                                                                                                                                                                

 it "is entitled to judgment as a matter of law."                                                          When the moving party seeks summary  



                                                                                                                                                                                              

judgment on an issue where the non-moving party bears the burden of proof at trial, the  



                                                                                                                                                                                             

moving party must "show[] that there is an absence of a factual dispute on a material fact  



                4             Norris v. Norris                     , 345 P.3d 924, 928 (Alaska 2015).                                



                5              Beaux v. Jacob                     , 30 P.3d 90, 97 (Alaska 2001) (footnote omitted).                                           



                6  

                                                                                                                                                                                                 

                               Alaska R. Civ. P. 56(c); see also Christensen, 335 P.3d at 517; Kalenka v.  

                                                                                            

Jadon, Inc., 305 P.3d 346, 350 (Alaska 2013).  



                                                                                                -7-	                                                                                      7507
  


----------------------- Page 8-----------------------

and that this absence of a dispute constitutes a failure of proof on an essential element"                                                                   

of the non-moving party's underlying claim.                                               7  



                           Fire Lake moved for summary judgment on its counterclaim for breach of  

                                                                                                                                                                           



contract against Kimp.  To prevail on summary judgment, Fire Lake was required to  

                                                                                                                                                                          

show undisputed facts establishing that Kimp breached the contract.8                                                                        On appeal, Kimp  

                                                                                                                                                                   



disputes the parties' intent regarding the remedies available to Fire Lake for failure to  

                                                                                                                                                                           



pay rent and thus claims the issue is inappropriate for resolution on summary judgment.  

                                                                                                                                                                                



He also claims that Fire Lake's alleged promise to abate his rent until he opened for  

                                                                                                                                                                         



business should prevent enforcement of the contract under a promissory estoppel theory.  

                                                                                                                                                                 



To succeed on summary judgment Fire Lake, as the moving party, must also show  

                                                                                                                                                                   



undisputed facts that establish a failure of proof of an essential element of Kimp's  

                                                                                                                                                               

promissory estoppel claim.9  

                                           



                           1.           The parties did not intend a cure period for failure to pay rent.  

                                                                                                                                                                     



                           Kimp asserts that language in Fire Lake's notice of default combined with  

                                                                                                                                                                      



the text messages he presented in his motion to set aside summary judgment show that  

                                                                                                                                                                       



the parties intended a ten-day cure period for failure to pay rent.  He argues that the  

                                                                                                                                                                        



parties' disagreementover this issueconstitutes a genuine issueofmaterial factsufficient  

                                                                                                                                                            



to overcome Fire Lake's motion for summary judgment.  

                                                                                              



              7            Achman v. State                 , 323 P.3d 1123, 1126 (Alaska 2014) (quoting                                                Greywolf v.   



Carroll, 151 P.3d 1234, 1241 (Alaska 2007)).                                   



              8            See Alaska R. Civ. P. 56(c); Christensen, 335 P.3d at 517.  

                                                                                                                                        



              9            See Achman, 323 P.3d at 1126.  

                                                                               



                                                                                    -8-                                                                             7507
  


----------------------- Page 9-----------------------

                          We have repeatedly stated that "[t]he goal of contractual interpretation is             



                                                                                                                  10  

to give effect to the reasonable expectation of the parties."                                                                                               

                                                                                                                       In giving effect to those  



                                                                                                                                                                   

expectations, we generally decide the meaning of contractual language as a matter of  

        11   We give primary effect to the language of the contract but also consider extrinsic  

law.                                                                                                                                                   

evidence of "the parties' intent at the time the contract was made."12                                                                When the parties  

                                                                                                                                                          



assert a different intended meaning for contractual language, we first determine, as a  

                                                                                                                                                                     



matter  of  law,  whether  the  contractual  language  "is  reasonably  susceptible  to  both  

                                                                                                                                                              

asserted meanings."13                       Only when both readings are reasonable does the parties' intent  

                                                                                                                                                            

become a question of fact sufficient to overcome a motion for summary judgment.14  

                                                                                                                                            



             10           Casey v. Semco Energy, Inc.                           , 92 P.3d 379, 383 (Alaska 2004);                                accord Sw.   



Marine, Inc. v. State, Dep't of Transp. &Pub. Facilities, Div. of Alaska Marine Highway                                                               

Sys., 941 P.2d 166, 173 (Alaska 1997);                                    Norton v. Herron                  , 677 P.2d 877, 879-80 (Alaska              

 1984).  



             11          Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist. , 778  

                                                                                                                                                                

P.2d 581, 584 (Alaska 1989) ("[Q]uestions of interpretation of the meaning of written  

                                                                                                                                                    

documents are treated as questions of law for the court except where they are dependent  

                                                                                                                                                   

for their resolution on conflicting extrinsic evidence.").  

                                                                                    



             12           Norton, 677 P.2d at 880; see also Alaska Diversified Contractors, 778 P.2d  

                                                                                                                                                               

at 584 ("[T]he words of an integrated agreement remain the most important evidence of  

                                                                                                                                                                   

intention." (quoting RESTATEMENT (SECOND)  OF  CONTRACTS   § 212 cmt. b (A                                                                             M. L     AW  

                                        

INST . 1981)).   



             13          Alaska Diversified Contractors , 778 P.2d at 584.  

                                                                                                                



             14           See W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 657 n.4 (Alaska  

                                                                                                                                                        

 1991) ("Even where there is conflicting extrinsic evidence the court decides the question  

                                                                                                                                                       

of meaning except where the written language, when read in context with its subject  

                                                                                                                                                         

matter,  is  reasonably  susceptible  to  both  asserted  meanings.                                                              If  the  language  is  

                                                                                                                                                                  

susceptible to both asserted meanings, then interpreting the contract is a question of fact  

                                                                                                                                                                

for the jury." (citation omitted)); Alaska Diversified Contractors , 778 P.2d at 584 ("The  

                                                                                                                                                            

question  of  the  meaning  of  a  written  contract,  including  a  review  of  the  extrinsic  

                                                                                                                                                     

                                                                                                                                             (continued...)  



                                                                                 -9-                                                                         7507
  


----------------------- Page 10-----------------------

                                                                                                           15  

                       In  Rockstad v. Global Finance & Investment Co.                                         we described a similar        



framework for lease interpretation.                            We first determine if language in the lease, when                             

                                                                                              16   "Disagreement alone does not  

viewed together with extrinsic evidence, is ambiguous.                                                                                           



establish the existence of an ambiguity. . . . '[A]n ambiguity exists only where the  

                                                                                                                                                 



disputed  terms  are  reasonably  subject  to  differing  interpretation  after  viewing  the  

                                                                                                                                                

contract as a whole and the extrinsic evidence surrounding the disputed terms.' "17   And  

                                                                                                                                               

we keep to the four corners of the lease when the lease is unambiguous.18  

                                                                                                     



                       Kimp's contention that Quake and Fire Lake never intended failure to pay  

                                                                                                                                                



rent as grounds for immediate default does not withstand scrutiny.  The text messages  

         



he offers as proof are from November 2016, almost nine months after the lease period  

                                                                                                                                           



began.  But that evidence cannot speak to the parties' intent when they signed the lease.  

                                                                                                                                                        



Likewise, language in Fire Lake's notice of default references section 17.B, which  

                                                                                                                                           



concerns non-monetary violations of the lease.  That language does not speak to the  

                                                                                                                                                 



parties' intent with respect to section 17.A, which covers failure to pay rent.  

                                                                                                                             



            14         (...continued)  



                                                                                                                                                   

evidence  to  determine  whether  any  of  the  extrinsic  evidence  is  conflicting,  is  a  

                                                                                                                                                 

preliminary question for the court.  Where there is conflicting extrinsic evidence the  

                                                                                                                                            

court, rather than thejury,must nonetheless decidethe question ofmeaning except where  

                                                                                                                                       

the  written  language,  read  in  context,  is  reasonably  susceptible  to  both  asserted  

meanings.").  



            15         41 P.3d 583 (Alaska 2002).  

                                                            



            16         Id. at 586.  

                                  



            17         Id.  (quoting  Wessells v. State, Dep't of Highways, 562 P.2d 1042, 1046  

                                                                                                                                             

(Alaska 1977)).  

               



            18         See id.  

                               



                                                                       -10-                                                                  7507
  


----------------------- Page 11-----------------------

                                             Section 3.B of the lease makes it clear when rent is due: "[Kimp] shall pay                                                                                                                                                         



 to [Fire Lake] monthly rent . . . , without deductions, prior notice, or demand, . . . on or                                                                                                                                                                                         



 before the first day of each calendar month."                                                                                                        Section 17.A states that "failure to make                                                                            



 payment of any installment of monthly rent . . . if not paid by the due date" is grounds                                                                                                                    



 for "material default under [the] Lease, thereby entitling [Fire Lake] to exercise any and                                                                                                                                                                                      



 all of its remedies."                                            These lease provisions are not reasonably susceptible to more than                                                                                                                                           



 one intended meaning as a matter of law.                                                                                                   Rent was due on the first of the month, and                                                                                          



 failure to make timely payment was grounds for immediate default, entitling Fire Lake                                                                                                                                                                                       



 to exercise any and all remedies available to it under the lease.                                                                                                                          



                                             2.                    Kimp's defense of promissory estoppel is without merit.                                                                                                                       



                                             "The    doctrine    of    promissory    estoppel    allows    the    enforcement    of  



 contract-like promises despite a technical defect or defense that would otherwise make                                                                                                                                                                                    



                                                                                             19  

 the promise unenforceable."                                                                                                                                                                                                                                       

                                                                                                    We have held that to enforce a promise under this doctrine  



                                                                                                                                                                                                                                                    

 a claimant must establish  that an  actual promise induced  a reasonably  foreseeable,  



                                                                                                                                                                                                                                                                                      

 substantial change in position and that enforcement must be necessary in the interest of  

justice.20  



                                             Kimp argues that Fire Lake's alleged promise to abate his rent induced him  

                                                                                                                                                                                                                                                                                 



 to substantially change his position, apparently in that he was free to skip rent payments  

                                                                                                                                                                                                                                                              

 until he completed construction.21  He asserts that Fire Lake actually foresaw this change  

                                                                                                                                                                                                                                                                      



 since, after consenting to Kimp's non-payment of rent, it actively helped Quake to secure  

                                                                                                                                                                                                                                                                         



                       19                    Thomas v. Archer, 384 P.3d 791, 798 (Alaska 2016) (quoting                                                                                                                                                  Kiernan v.  



 Creech, 268 P.3d 312, 315 (Alaska 2012)).                                                                             



                       20                   Id. at 798-99.  

                                                               



                       21                    Kimp stated thathis originalpositionwas tobegin paying rent in September  

                                                                                                                                                                                                                                                           

 in accordance with the lease.  

                                                                                                  



                                                                                                                                        -11-                                                                                                                                 7507
  


----------------------- Page 12-----------------------

investors and contractors to finish construction. Fire Lake responds that Kimp's alleged                                                                                                 



change   in   position   was   not   action  but  rather   inaction,   and   that   inaction   cannot   be  



considered a substantial change in position.                                     



                               We agree that Kimp's non-payment of rent did not constitute a substantial                                                                        



change in position.                            In  Zeman v. Lufthansa German Airlines                                                          we considered a dispute                 



over an alleged oral agreement between the builder of an apartment complex and the                                                                                                                

                22     The parties had preliminary discussions about housing the airline's personnel  

airline.                                                                                                                                                                           

in Anchorage at an apartment complex the builder was constructing.23                                                                                                 The airline sent  

                                                                                                                                                                                                



the builder a letter of intent, stating that it planned to house its crews at the builder's  

                                                                                                                                                                                    



apartment complex but could not commit to signing an agreement until it had more  

                                                                                                                                                                                             

confidence that the building would be completed on time.24                                                                                    The discussions later fell  

                                                                                                                                                                                                 

                                                                                                                                                        25     The builder sued,  

through, and the airline declined to sign a lease with the builder.                                                                                                                          

                                                                                                                                      



claiming the parties had entered into an oral agreement for the airline to lease units from  

                                                                                                                                                                                              

                           26    The builder alternatively argued under a promissory estoppel theory that  

the builder.                                                                                                                                                                                    

         



the airline had promised to enter into a lease agreement with the builder and that the  

                                                                                                                                                                                                  

builder detrimentally relied on this promise.27                                                                  We considered the first prong of the  

                                                                                                                                                                                                 



promissory estoppel test:  whether the action induced by the airline's alleged promise  

                                                                                                                                                                                      



                22             699 P.2d 1274, 1278 (Alaska 1985).
                                   



                23             Id. at 1278-79.
  

                                             



                24
            Id. at 1278.  

                                             



                25             Id.  at 1279.   



                26             Id.  



                27             Id. at 1283-84.  

                                             



                                                                                                -12-                                                                                         7507
  


----------------------- Page 13-----------------------

                                                                                         28  

amounted to a substantial change of position.                                                  We observed that "[c]ourts look for                               



evidence of actual and substantial economic loss" to determine "[w]hether particular                                                                

actions represent substantial changes."                                   29  



                                                                                                                                                                  

                          In  Zeman  we  remanded  for  the  superior  court  to  make  findings  as  to  

                                                                                                        30  Here, remand is not necessary.  

                                                                                                                                                                         

whether actual and substantial economic loss occurred. 



The  action  allegedly  induced  by  the  promise  to  abate  rent  was  for  Kimp  to  forgo  

                                                                                                                                                            



financial outlays he otherwise would have been required to make.  Kimp claims this is  

                                                                                                                                                                    



a substantial change in position. But this is not actual and substantial economic loss. On  

                                                                                                                                                                 



the contrary, it is a financial windfall for Kimp.  While it is a change in position, it is a  

                                                                                                                                                                     



change in the wrong direction, and it therefore cannot serve as a basis for Kimp's  

                                                                                                                                                        



promissory estoppel claim.  

                                         



                          Kimp asserts that Fire Lake's alleged promise induced him to refrain from  

                                                                                                                                                              



paying rent.  But Kimp's non-payment of rent does not constitute a substantial change.  

                                                                                                                                                        

                                                                                                                            31  Summary judgment  

Thus, there is "an absence of a factual dispute on a material fact."                                                                                 

                                                                                                                   



against Kimp on his promissory estoppel defense was proper.  

                                                                                                         



                          3.	         FireLakemet its summary judgment burden to show that Kimp  

                                                                                                                                                            

                                      breached the lease.  

                                                                   



                          Fire Lake provided undisputed evidence showing that Kimp materially  

                                                                                                                                                   



breached the lease when he did not pay Fire Lake rent when due.  This was grounds for  

                                                                                                                                                                 



immediate default and material breach of the lease under section 17.A.  We therefore  

                                                                                                                                                     



             28          Id.  at 1284-85.   



             29          Id. at 1284.  

                                     



             30          Id.  at 1285.   



             31  

                                                                                                                                                                    

                         Achman v. State , 323 P.3d 1123, 1126 (Alaska 2014) (quoting Greywolf v.  

Carroll, 151 P.3d 1234, 1241 (Alaska 2007)).                               



                                                                               -13-	                                                                         7507
  


----------------------- Page 14-----------------------

affirm the superior court's grant of summary judgment in favor of Fire Lake for breach                                                                                                



of contract.   



               B.	             The Superior Court Properly Granted Summary Judgment In Favor                                                                                           

                               Of Fire Lake On All Of Kimp's Claims.                                         



                              Fire Lake may succeed on summary judgment on Kimp's claims against it                                                                                               



if undisputed facts establish that it is entitled to dismissal of Kimp's claims as a matter                                                                                           



                32  

of law.                                                                                                                                                                                  

                     We conclude as a matter of law that Fire Lake did not breach the lease as Kimp  



                                                                                                                                                                          

claims.  Fire Lake also did not act with the intent required for intentional interference  



                                                                                                                                                                               

with a prospective business relationship. And it did not injure the rights Kimp bargained  



                                                                                                                                                                                             

for under the lease as required for breach of the implied covenant of good faith and fair  



                                                                 

dealing.  The superior court therefore properly granted summary judgment dismissing  



                                                                             

all of Kimp's claims against Fire Lake.  



                                                                                                                     

                               1.	            Fire Lake did not breach the lease.  



                                                                                                                                                                                            

                              Kimp argues that Fire Lake violated lease sections 13, 17.B, 18.C, and  



             33  

 18.D.                                                                                                                                                                             

                   Section 13 provides Fire Lake with a general release from liability for damage  



                                                                                                                                                                                                

to Quake or Quake's property except from activity arising out of gross negligence or  



                                                                                                                                                                                    

willful misconduct.  Kimp argued that Fire Lake acted in a grossly negligent manner  



               32	            See  Alaska R. Civ. P. 56(c).                      



               33  

                                                                                                                                                                                  

                               Section 13 concerns Fire Lake's liability for damage to Quake or Quake's  

                                                                                                                                                                                         

property. Section 17.B gives Quake ten days after receiving notice to cure certain types  

                                                                                                                                                                                          

of default.  Section 18 governs remedies:  upon termination of the lease, section 18.C  

                                                                                                                                                                                          

gives Fire Lake a right to repossess the unit while section 18.D allows Fire Lake to seize  

                                                                                                                                                                                    

Quake's personal property.  Kimp also argued that Fire Lake breached section 15.B in  

                                                                                                                                                                                             

his motion papers before the superior court.  But on appeal he does not mention this  

                                                                                                                                                                                             

section except once in passing with no additional follow-up.  We therefore deem this  

                                                                                                                                                                                             

argument waived for inadequate briefing and do not address it.  Windel v. Carnahan, 379  

                                                                                                                                                                                              

P.3d 971, 980 (Alaska 2016) ("[W]here a point is given only a cursory statement in the  

                                                                                                                                                                                         

argument portion of a brief, the point will not be considered on appeal." (quoting Burts  

                                                                                   

v. Burts, 266 P.3d 337, 344 (Alaska 2011))).  



                                                                                              -14-	                                                                                      7507
  


----------------------- Page 15-----------------------

when it declined to approve his plans for live music. We believe Kimp implies that Fire                                                                                                                                                                                                                                             



Lake breached section 13 when it acted in this manner.                                                                                                                                  



                                                    We struggle to understand, however, how Fire Lake could breach this                                                                                                                                                                                                             



 section of the lease at all.                                                                       Section 13 states:                                                       "[Fire Lake] shall not be liable to [Quake]                                                                                           



for any damage to [Quake] or [Quake]'s property from any cause, and [Quake] further                                                                                                                                                                                                                                     



waives all claims against [Fire Lake] for . . . damage to any property . . . for any reason."                                                                                                                                                                                                                                                          



It further requires Quake to indemnify Fire Lake and hold it harmless for any injury that                                                                                                                                                                                                                                            



arises out of Quake's business. Section 13 provides an exception to this liability waiver                                                                                                                                                                                                                                



and indemnification requirement in the event Fire Lake engages in grossly negligent or                                                                                                                                                                                                                                                     



willful misconduct, but it fundamentally does not require Fire Lake to do anything.                                                                                                                                                                                                                                                                    



 Section 13 rather limits Fire Lake's obligations under the lease and imposes an additional                                                                                                                                                                                                                  



obligation on Quake to indemnify Fire Lake under certain circumstances.                                                                                                                                                               



                                                     "[A] breach of contract is a failure, without legal excuse, to perform any                                                                                                                                                                                                      

                                                                                                                                                                                                       34   There is nothing Fire Lake can do  

promise that forms the whole or part of a contract."                                                                                                                                                                                                                                                                                      



to breach this section of the lease because it does not contain a promise Fire Lake made  

                                                                                                                                                                                                                                                                                                                              



to Quake.  Even assuming that Fire Lake acted in a grossly negligent or willful manner  

                                                                                                                                                                                                                                                                                                                      



and that this action caused Quake injury, section 13 would only allow Quake to bring an  

                                                                                                                                                                                                                                                                                                                                          



action for negligence against Fire Lake, not one for breach of contract.  But Kimp does  

                                                                                                                                                                                                                                                                                                                                 



not include negligence as a cause of action in his complaint.  Fire Lake did not breach  

                                                                                                                                                                                                   



 section 13 because it could not commit breach of this section in the manner that Kimp  

                                                                                                                                                                                                                                                             



describes.  



                                                     Section 17 contains provisions related to default. This section outlines five  

                                                                                                                                                                                                                                                                                                                                     



conditions under which Quake could default under the lease.  Each of these conditions  

                                                                                                                                                                                                                                                                                                          



                          34                                          AMUEL  WILLISTON  & R                                                                      ICHARD  A. L                                     ORD, A T                           REATISE ON THE                                                 LAW OF   

                                                     23 S 

CONTRACTS § 63:1, at 478 (4th ed. 2018).                                                                                                   

                                                  



                                                                                                                                                                  -15-                                                                                                                                                                           7507  


----------------------- Page 16-----------------------

gives Fire Lake the right to exercise the remedies outlined in section 18.                                                                                                          Kimp argues   



that Fire Lake breached section 17.B by not giving him notice and ten days to cure his                                                                                                                        



failure to pay rent. But we have already concluded that failure to pay rent when due was                                                                                                                    



grounds for immediate default under section 17.A. The plain language of the lease does                                                                                                                     



not require Fire Lake to give Kimp notice before exercising remedies for his lack of rent                                                                                                                   



payment. Fire                       Lake did not breach the notice-and-cure-period provisions of section 17.B  



because it exercised remedies available to it under the authority of section 17.A.                                                                                                      

                                 Kimp claims that our decision in  Sengul v. CMS Franklin, Inc.                                                                                             35 requires  



us to conclude that Fire Lake breached sections 18.C and 18.D when it locked him out  

                                                                                                                                                                                                              



of the unit and constructively evicted him without first terminating the lease.  In Sengul  

                                                                                                                                                                                                     



we considered whether a landlord violated the lease when he placed a cable lock on the  

                                                                                                                                                                                                              

                                                                                                                                                                                             36   But our  

door preventing the tenant from accessing the rental unit for a couple of hours.                                                                                                                              

                                                                                                                                                                              



conclusion in that case rested on express language  in  the lease:   the lease allowed  

                                                                                                                                                                                                 



landlord self-help only upon notice, and because the landlord did not give notice prior  

                                                                                                                                                                                         

                                                                                                                       37      Sengul  illustrates the case-by-case  

to locking the tenant out, he violated the lease.                                                                                                                                     

                                                                                                         



nature of the inquiry we must perform in these cases. We must examine the terms of the  

                                                                                                                                                                                                              



lease in these situations to determine the legality of the landlord's action.  

                                                                                                                                                                    



                                 The lease provisions in this case are clear:  a default by Quake as outlined  

                                                                                                                                                                                                  



in section 17 triggers the remedies detailed in section 18. Unlike the lease we considered  

                                                                                                                                                                                           



in Sengul, section 17.A did not require notice before Fire Lake could exercise remedies  

                                                                                                                                                                                                



for failure to pay rent.  Once Kimp defaulted, Fire Lake had an immediate right to enter  

                                                                                                                                                                                                          



and relet the unit under section 18.A.  

                                                                              



                 35              265 P.3d 320 (Alaska 2011).                             



                 36  

                                                

                                 Id. at 323.  



                 37              Id. at 324-25.  

                                                



                                                                                                      -16-                                                                                               7507
  


----------------------- Page 17-----------------------

                                           Fire Lake could not have done so without some amount of disruption to                                                                                                                          



Kimp's possession.                                                Fire Lake submitted evidence that it had concerns over "major                                                                                                                             



 safety issues [that] . . . Kimp failed to address."                                                                                                              This included a dysfunctional fire                                                                   



 suppression and sprinkler system and other building code violations.                                                                                                                                                          Once Fire Lake                      



 entered the unit, it discovered that Kimp may have caused damage to the roof and voided                                                                                                                                                                      



Fire Lake's roof warranty.                            



                                           Fire Lake could not have accomplished the tasks required to relet the unit                                                                                                                                                  



without also putting in place some mechanismto prevent Kimp frominterfering with that                                                                                                                                                                                   



 effort and causing more damage.                                                                          Fire Lake's actions here, unlike those in                                                                                       Sengul, were   

 expressly allowed under the lease.                                                                          38  



                                           2.	                  Undisputed  facts  establish  that  Fire  Lake  did  not  intend  to  

                                                                                                                                                                                                                                                                           

                                                                interfere with Quake's business relationship.  

                                                                                                                                                                             



                                           Kimp  claims  that  the  superior  court  erred  by  omitting  his  claim  of  

                                                                                                                                                                                                                                                                          



intentional interference with a prospective business relationship altogether.   But the  

                                                                                                                                                                                                                                                                        



 superior court did not omit this claim from its analysis. The superior court first identified  

                                                                                                                                                                                                                                                     



the six elements a plaintiff must show for the tort of intentional interference with a  

                                                                                                                                                                                                                                                                               



                     38                    Kimp argued extensively in his motion papers that Fire Lake violated                                                                                                                                         



numerous   statutes   related   to   forcible   entry   and   detainer.     But   he   appears  to  have  

 abandoned   all   of these                                                  arguments   on   appeal.     We   therefore   do   not   consider   them.   

 Windel, 379 P.3d at 980.  We note only that the forcible entry and detainer statutes do  

                                                                                                                                                                                                                                                          

not preclude landlord self-help in commercial leases.  See Sengul, 265 P.3d at 324-25;  

                                                                                                                                                                                          

Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991).  



                                                                                                                                   -17-	                                                                                                                            7507
  


----------------------- Page 18-----------------------

                                                                                                                                                    39  

 prospective business relationship.                                                                                                                           It then concluded that Kimp had not established                                                                                                                       



 intent as required by the second element of the tort, and indeed he has not.                                                                                                                                                                                                                                   



                                                          Nowhere in his motion papers did Kimp provide evidence that in retaking                                                                                                                                                                                                                 



 possession of the unit, Fire Lake did so with intent to interfere with a prospective                                                                                                                                                                                                                                            



 relationship.   Kimp submitted an affidavit stating that Cantrell had knowledge of his                                                                                                                                                                                                                                                                                 



 relationship with the company that agreed to help him finish construction, but he never                                                                                                                                                                                                                                                                     



 alleged that Fire Lake evicted him with intent to interfere with that relationship.                                                                                                                                                                                                              



                                                           In contrast, Fire Lake submitted evidence showing that it did not intend to                                                                                                                                                                                                                                       



 interfere   with   Kimp's   business  relationship.     Fire   Lake   had   concerns   that   Kimp's  



 "multiple   material   breaches,   many   that   involved   serious   safety   issues,  .  .   .   could  



jeopardize the financial viability of Fire Lake Plaza and potentially cause it to file for                                                                                                                                                                                                                                                                             



 bankruptcy."    Kimp did not dispute these facts.                                                                                                                                                                     Undisputed facts therefore show a                                                                                                                       



                              39                          A plaintiff must establish all of the following to prevail on a claim of                                                                                                                                                                                                                                        



 intentional interference with prospective business or contractual relations:                                                                                                                                                                                                          



                               1.	                        A prospective business relationship must exist;                                                                                                                                    

                              2.	                          The defendant must know of the prospective relationship and intend                                                                                                                                                                                                 

                                                          to prevent its fruition;                                   

                              3.	                          The   prospective   business   relationship  must   not   culminate   in  

                                                          pecuniary benefit to the plaintiff;                                                                     

                              4.	                          The   defendant's   conduct   must   interfere   with   the   prospective  

                                                          relationship;  

                                                                                                                                                                                                                                                                                      

                              5.	                          The interference must cause the plaintiff damages; and  

                                                                                                                                                                                                                                                                                      

                              6.	                          The defendant's conduct must not be privileged or justified.  



                                                                                                                                                                                                                                     

 See Oaksmith v. Brusich, 774 P.2d 191, 198 (Alaska 1989).  



                                                                                                                                                                                   -18-	                                                                                                                                                                        7507
  


----------------------- Page 19-----------------------

failure to establish an essential element of Kimp's claim.                                                                 The superior court did not err                            

by granting summary judgment in favor of Fire Lake on that claim.                                                                                40  



                                                                                                                                                                                     

                             3.	           Fire  Lake  did  not  injure  Kimp's  rights  under  the  lease  as  

                                                                                                                                                                                  

                                           required for breach of the implied covenant of good faith and  

                                                      

                                           fair dealing.  



                                                                                                                                                                                  

                             "Under Alaska law, every contract has an implied covenant of good faith  



                                                                                                                                                                                 

and fair dealing requiring 'that neither party . . . do anything which will injure the right  



                                                                                                                    41  

                                                                                                                                                                                    

of the other to receive the benefits of the agreement.' "                                                                 The covenant arises out of "an  



                                                                                                                                                                                      

effort to further the expectations of the contracting parties that . . . promises will be  



                                                    42  

                                                                                                                                                                                       

executed in good faith."                                  We have held that "bad faith may be overt or may consist of  



                                                                                                                               43  

                                                                                                           

inaction, and fair dealing may require more than honesty." 



                                                                                                                                                                                    

                             Kimp claims that Fire Lake violated the implied covenant of good faith and  



                                                                                                                                                                                

fair  dealing in two ways.   First, he contends that Fire Lake prevented Quake from  



                                                                                                                                                                               

fulfilling  its  obligations  under  the  lease  when  Fire  Lake  delayed  making  lease  



                                                                                                                                                                                   

modifications as required by Quake's special land use permit.  Second, he argues that  



           

Fire Lake prevented Quake from completing its construction work on time because of  



                                                                                         44  

                                                                         

its delays in approving the water shutoff. 



               40	           See Achman v. State                         , 323 P.3d 1123, 1126 (Alaska 2014).                                



               41            Castle Props., Inc. v. Wasilla Lake Church of the Nazarene                                                                    , 347 P.3d 990,        



997 (Alaska 2015) (alteration in original) (footnote omitted) (quoting                                                                                   Jackson v. Am.            

Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004)).  

                                                                                            



               42	           Alaska Pac. Assurance Co. v. Collins , 794 P.2d 936, 947 (Alaska 1990).  

                                                                                                                                                                            



               43            Klondike Indus. Corp. v. Gibson, 741 P.2d  1161, 1168 (Alaska 1987)  

                                                                                                                                                                              

(quoting RESTATEMENT  (SECOND)  OF  CONTRACTS  § 205 cmt. d (A                                                                               M. L      AW  INST . 1981)).   

                     



               44            Kimp alleged in his amended complaint that Fire Lake's refusal to put its                                                                                



                                                                                                                                                                                 

promise to abate rent in writing also constituted breach of the implied covenant of good  

                                                                                                                                                              (continued...)  



                                                                                         -19-	                                                                                  7507
  


----------------------- Page 20-----------------------

                                                                          We hold that neither of Kimp's claims constitutes breach of the implied                                                                                                                                                                                                                                                                                                  



 covenant.    Even if we assume that Fire Lake's delays in making lease modifications                                                                                                                                                                                                                                                                                                                            



thwarted Quake's ability to operate under its special land use permit, Quake did not                                                                                                                                                                                                                                                                                                                                                                                       



bargain for an agreement where Fire Lake was required to allow an entertainment venue                                                                                                                                                                                                                                                                                                                                                                         



within the brewpub.                                                                                                The lease clearly states that noise emitted from loud speakers or                                                                                                                                                                                                                                                                                              



 other devices should not be heard outside of the unit.  Quake's special land use permit                                                                                                                                                                



 application states that only recorded music, and no live music, would be played within                                                                                                                                                                                                                                                                                                                                                                    



the brewpub.                                                              When Kimp first discussed with Cantrell her concerns about his plans for                                                                                                                                                                                                                                                                                                                            



 a stage, he implied that he did not need to build the stage at all if she had a problem with                                                                                                                                                                                                                                                                                                                                                                         



it.   Despite those assurances, Kimp faults Cantrell for her refusal to allow the "types of                                                                                                                                                                                                                                                                                                                                                                                        



live music and live entertainment that would be typical at [his] brewpub."                                                                                                                                                                                                                                                                                                                                                 



                                                                          Kimp claims that before Quake could open for business under the permit,                                                                                                                                                                                                                                                                                                      



Fire Lake had to approve lease modifications to allow noise to be heard outside of the                                                                                                                                                                                                                                                                                                                                                                                       



premises and to allow entertainment and amplified events. But these modifications were                                                                                                                                                                                                                                                                                                                                                                              



 only required becauseofinformation                                                                                                                                                                      Kimp included in his permit application toestablish                                                                                                                                                                                   



 an entertainment venue there.                                                                                                                                         Kimp did not have to submit plans that called for these                                                                                                                                                                                                                                   



types of lease changes, and based on the plain language of the lease, he certainly did not                                                                                                                                                                                                                                                                                                                                                                                  



bargain for them.                                                                                    Cantrell's refusal to permit them therefore could not frustrate the                                                                                                                                                                                                                                                                                                    



benefit that Quake bargained for when entering into the lease with Fire Lake, and such                                                                                                                                                                                                                                                                                                                                                                               



 action cannot be considered a basis for breach of the implied covenant.                                                                                                                                                                                                                                                                           



                                     44                                   (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 faith and fair dealing.  But he mentions this incident on appeal only in the context of  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

promissory estoppel.  We decline therefore to address Fire Lake's alleged promise to  

                                                                                                                                                                                                                                                                                                                                                                                                                

 abate rent in our analysis of breach of the implied covenant of good faith  and fair  

 dealing.  



                                                                                                                                                                                                                                     -20-                                                                                                                                                                                                                            7507
  


----------------------- Page 21-----------------------

                             Likewise the evidence does not show that Fire Lake breached the implied                                                                      



covenant with respect to shutting off water to the unit. We have recognized that inaction                                                                                

                                                                                                                     45    But we have also noted that a  

can provide a basis for breach of the implied covenant.                                                                                                                                 

                                                                                                                                                                           46    The  

party's action or inaction should be viewed through a lense of reasonableness.                                                                                                   

                                                                                                                                          



evidence Kimp submitted shows that Fire Lake made reasonable efforts to accommodate  

                                                                                                                                                             



Kimp in coordinating the water shutoff.  It was reasonable that Fire Lake would attempt  

                                                                                                                                                                          



to shut off the water in a way that would minimize disruption to its other tenants.  And  

                                                                                                                                                                                 



Fire  Lake's  property  management  company  responded  to  Kimp's  requests  in  a  

                                                                                                                                                                                      



reasonable amount of time.  The property management company attempted to contact  

                                                                                                                                                                           



Kimp on multiple occasions in late April to coordinate a time that would work for  

                                                                                                                                                                                   



everyone.                  When  the  projected  shutoff  moved  from  April  to  May,  the  property  

                                                                                                                                                                       



management company again contacted Kimp because it apparently had not heard from  

                                                                                                                                                                                



him.  The next correspondence in the record is from late May when Kimp indicated that  

                                                                                                                                                                                   



his  plumber  needed  to  shut  the  water  off  in  early  June;  the  property  management  

                                                                                                                                                              



company responded to Kimp within two business days. This evidence demonstrates that  

                                                                                                                                                                                   



Fire  Lake  made  reasonable  efforts  through  its  property  management  company  to  

                                                                                                                                                                                     



coordinate with Kimp in good faith on shutting water off to the unit.  Kimp adduced no  

                                                                                                                                                                                     



evidence raising a genuine issue of fact as to breach of the implied covenant.  

                                                                                                                                                 



              45             See Klondike                , 741 P.2d at 1168.                       



              46             See Castle Props., 347 P.3d at 998 n.29 ("The implied covenant of good  

                                                                                                                                                                               

faith and fair dealing requires not only subjective good faith, but also that both parties                                                                       

 'act in a way that a reasonable person would consider fair.' " (quoting Hawken Nw., Inc.  

                                                                                                                                                                                  

v.  State, Dep't of Admin.                           , 76 P.3d 371, 381 (Alaska 2003))).                         



                                                                                         -21-                                                                                  7507
  


----------------------- Page 22-----------------------

                C.	            The Superior Court Did Not Abuse Its Discretion By Denying Kimp's                                                                                     

                               Request For A Hearing On His Motion To Compel Discovery.                                                                      



                               Kimp argues the superior court erred in denying his request for a hearing                                                                             



 on   his   motion   to   compel   discovery   because   Alaska   Civil   Rule   77(e)(2)   explicitly  



 "allow[s] for such a hearing."                                       But Rule 77(e)(2) does not require the superior court to                                                                     



                                                                                                                                                                                    47  

hold this hearing; it gives the superior court discretion whether to hold a hearing.                                                                                                     Kimp  



                                                                                                                                                                                                 

presents nothing to suggest that the superior court's order denying his request was an  



                                                                                                                                                                                 

 abuse  of  discretion.                              Given  that  the  superior  court  had  already  granted  summary  



                                                                                                                                                                                      

judgment and was prepared to enter final judgment in Fire Lake's favor, it was entirely  



                                                                                                                                                                                     

reasonable for the court to deny Kimp's subsequent discovery motion that might prolong  



                                

 entry of final judgment.  



                                                                                                                                                                             

                D.	            The Superior Court Did Not Clearly Err In Its Award Of Damages.  



                                                                                                                                                                                               

                               Kimp argues that the superior court erroneously overlooked his claim that  



                                                                                                                                                                                                         

 Fire Lake was unjustly enriched and that the court's award of damages was excessive.  



                                                                                                                                                                                  

 We conclude that the superior court did not clearly err with respect to the damages  



 award.  



                                                                                                                                                                                             

                               Kimp asserts that he enriched Fire Lake by over $200,000, including over  



                                                                                                                                                                                     

 $20,000  he  paid  for  engineering  floor  plans  that  Fire  Lake  allegedly  used  without  



                                                                                                                                                                                  

 compensation.  But even assuming that Kimp paid every bill or invoice he received,  



                                                                                                                                                                                              

 Kimp does not explain how Fire Lake was unjustly enriched by those payments.  For  



                                                                                                                                                                                              

 example,  Fire  Lake  would  not  have  been  enriched  by  Kimp's  payments  to  the  



                                                                                                                                                                                               

 Municipality of Anchorage for permits. Nor does he present any evidence showing that  



                                                                                                                                          

 Fire Lake or any subsequent tenant kept or used any of the items he allegedly paid for  



                47             See  Alaska R. Civ. P. 77(e)(2) (stating that "oral argument shall be held                                                                                    



 only in the discretion of the judge" except for dispositive and certain property-related                                                                         

motions).  



                                                                                               -22-	                                                                                       7507
  


----------------------- Page 23-----------------------

 and left in the unit.                             On the contrary, Kimp acknowledges in his briefing on appeal that                                                                                                   



 he retrieved his property from the unit.                                                 



                                   Finally,   Kimp    argues    that    Fire    Lake    improperly    appropriated    his  



 architectural drawings, but Kimp's evidence does not establish what he paid for those                                                                                                                             



 drawings.    The superior court did not clearly err in finding that Fire Lake was not                                                                                                                                 



 unjustly enriched.   



                                   As for the damages award, Kimp argues that the superior court violated                                                                                                  

 Alaska Civil Rule 52(a) by not explaining how it arrived at the damages award.48  But  



 Fire Lake submitted an affidavit that clearly detailed its request for damages.  These  

                                                                                                                                                                                                                



 damages included $157,664.11 in unpaid rent and utilities; late fees on the unpaid rent  

                                                                                                                                                                                                                      



 totaling  $15,168.90;  a  $20,000  settlement  with  a  contractor  that  Kimp  never  paid;  

                                                                                                                                                                                                                  



 $2,525.98 for repairs to the unit and cleanup costs; and $26,621.25 for the broker's  

                                                                                                                                                                                                          



 commission paid by Fire Lake. The superior court's award of damages exactly matches  

                                                                                                                                                                                                            



 Fire Lake's request.  And while Kimp asserted that Fire Lake was unjustly enriched, he  

                                                                                                                                                                                                                          



 did not dispute that he owed Fire Lake for each of these items.  We thus find ample  

                                                                                                                                                                                                                



 evidence in the record to support the court's damages award, and we conclude the court  

                                                                                                                                                                                                                   

 did not clearly err in making its award.49  

                                                                                    



                  48               See  Alaska R. Civ. P. 52(a) ("In all actions tried upon the facts without a   



jury . . . , the court shall find the facts specially and state separately its conclusions of law                                                                                                                      

 thereon . . . .").         



                  49               Kimp also argues the superior court's award of attorney's fees to Fire Lake  

                                                                                                                                                                                                                    

 was excessive.  This argument is waived because Kimp fails to explain why the court's  

                                                                                                                                                                                                              

 award was erroneous and he fails to cite any authority to support his argument.  

                                                                                                                                                                                                                



                                                                                                           -23-                                                                                                    7507
  


----------------------- Page 24-----------------------

V.                        CONCLUSION  



                                                   We AFFIRM the superior court's grant of summary judgment in favor of                                                                                                                                                                                                               



Fire Lake. We                                           AFFIRMthe                                          superior court's order denying Kimp's request for a hearing  



on his motion to compel.                                                                          And we AFFIRM the superior court's award of damages.                                                                                                                                         



                                                                                                                                                                           -24-                                                                                                                                           7507
  

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