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Gamble v. Northstore Partnership (12/8/95), 907 P 2d 477
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
BAXTER K. GAMBLE and )
YANG-CHA GAMBLE, ) Supreme Court Nos. S-6489/6969
Appellants and ) Superior Court No.
Cross-Appellees, ) 3AN-93-433 Civil
v. ) O P I N I O N
NORTHSTORE PARTNERSHIP, ) [No. 4291 - December 8, 1995]
Appellee and )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Albert Maffei and Jeri D.
Byers, Maffei, Inc., Anchorage, for
Appellants and Cross-Appellees. Robert H.
Hume, Jr., Copeland, Landye, Bennett and
Wolf, Anchorage, for Appellee and Cross-
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
Baxter and Yang-Cha Gamble sued Northstore Partnership
(Northstore) for reformation of a recorded grant of easement.
The trial court entered summary judgment in favor of Northstore,
concluding that the Gambles were not entitled to relief.
The Gambles appeal, arguing that Northstore's motion
for summary judgment relied upon affirmative defenses which were
not specifically pled as required by Alaska Civil Rule 8(c), and
therefore, the defenses were waived. In the alternative, the
Gambles contend that the trial court should have granted them
additional time for discovery.
We hold that the trial court erred in not granting the
Gambles additional time under Civil Rule 56(f) to respond to the
affirmative defenses raised in Northstore's summary judgment
motion. We therefore reverse and remand.
II. FACTS AND PROCEEDINGS
This case arises from a purported grant of easement
between the Small Business Administration (SBA) and Walter and
Lorraine Cruikshank d/b/a Marathon Company (Marathon), adjoining
property owners and predecessors in interest to the Gambles and
The easement at issue originated in 1986, when
Northstore expressed interest in obtaining a busy street-corner
property owned by Marathon for the purpose of constructing a 7-
Eleven convenience store and gas station. According to
Northstore, it believed that such a store would be viable only if
the property had vehicle access to a curb cut partially extending
onto an adjoining lot owned by SBA. Northstore purchased the
corner lot after Marathon recorded an easement agreement that it
purportedly entered into with SBA, providing for mutual rights of
ingress and egress across both properties. Approximately three
years later, SBA quitclaimed the adjoining lot to the Gambles.
The Gambles first learned of the recorded easement
after they purchased the property. When the Gambles discovered
that an easement had been recorded on their property, they filed
a sworn statement of loss with their title insurer and sued the
company for its failure to disclose the encumbrance and for its
refusal to respond to their claim. The insurer settled for
At approximately the same time, the Gambles discovered
what they believed to be a material discrepancy between a version
of the easement first executed by SBA and the version ultimately
executed and recorded by Marathon. Both versions initially
appear identical and contain two signature lines at the bottom of
the document. However, the first document, executed only by SBA
in April 1986, stated that the easement was for use of "that
portion of the grantor's parcel as cross-hatched on Exhibit A."
The separate document bearing SBA's April 1986 signature and
executed and recorded by Marathon in August 1986 stated that the
easement was for use of "that portion of the grantor's parcel as
cross-hatched on Exhibit A-1 & A-2." According to the Gambles,
Exhibits A-1 and A-2 provide for a substantially larger easement
than was agreed to by SBA.
In January 1993 the Gambles sued Northstore for
reformation of the recorded easement. Asserting that the
instrument had been unilaterally altered without SBA's consent,
the Gambles requested that Exhibit A from the April 1986
instrument be substituted for Exhibits A-1 and A-2. A trial date
was set for May 31, 1994, with discovery to close approximately
six weeks before, on April 19.
Six days before the close of discovery and one and one-
half months before trial, Northstore moved for summary judgment.
Northstore raised three independent grounds to justify summary
judgment dismissal: (1) reformation could not be sustained
against Northstore, a bona fide purchaser for value; (2) in
conducting a prior suit against their title insurer, the couple
"affirmed" the validity of the recorded easement; and (3) because
the Gambles held the property by quitclaim deed, they were barred
from seeking to correct defects in the easement.
When counsel for the Gambles telephoned Northstore and
complained that the motion raised affirmative defenses not set
out in the pleadings, Northstore moved to amend its answer. The
Gambles opposed both the summary judgment motion and the motion
to amend, arguing that Northstore's new defenses should be deemed
Following oral argument, the trial court granted
summary judgment in favor of Northstore. The court first found
that although Northstore's bona fide purchaser defense had not
been specifically set forth in the pleadings, the facts
supporting that theory were present. The court also found that
with regard to the defense of affirmance, the facts as well as
the theory itself had been available to the Gambles from the
outset. The court granted Northstore judgment on these two
grounds.1 It noted that although the "real issue" was whether
the Gambles had possessed enough time to oppose the summary
judgment motion, a discovery extension was inappropriate because
the Gambles had failed to make a specific request for relief
under Alaska Civil Rule 56(f).
This appeal followed.
This case concerns the Gambles' attempt to reform a
recorded grant of easement to conform to what the Gambles believe
is the only easement agreement entered into by their predecessor
in interest, SBA, with Northstore's predecessor in interest,
Marathon.2 The trial court granted summary judgment in favor of
Northstore on the basis of two defenses: bona fide purchaser and
We must determine the merit of the Gambles' contention
on appeal that, due to improper pleading, Northstore waived each
defense. We conclude that both defenses were properly raised.
However, we agree with the Gambles' alternative argument that
because the trial court did not grant the Gambles a continuance
with which to undertake additional discovery, the Gambles have
not had a sufficient opportunity to meet Northstore's defenses
A.Affirmative Defenses Are Specifically Pleaded or
Alaska Civil Rule 8(c) requires that certain specific
defenses, as well as "any other matter constituting an avoidance
or affirmative defense" be specifically set forth in the
pleadings. The purpose of the pleading requirements of Rule 8(c)
is to give the plaintiff sufficient notice of her opponent's
defenses so that she may enable herself to adequately prepare for
trial. Morrow v. New Moon Homes, Inc., 548 P.2d 279, 295 (Alaska
1976); see also Blonder-Tongue Labs. v. University of Ill.
Found., 402 U.S. 313, 350 (1971). Failure to so plead can result
in waiver of the defense. Morrow, 548 P.2d at 295; Rollins v.
Leibold, 512 P.2d 937, 940 (Alaska 1973); see generally 5 Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure '
1278, at 477 (1990) (analyzing parallel federal rule).
In its brief, Northstore concedes that the defenses of
bona fide purchaser and affirmance, though not specifically
listed in Rule 8(c), are affirmative defenses. Therefore, the
question presented is not whether the basic pleading requirements
of Rule 8(c) apply, but whether Northstore satisfied the rule's
Northstore's February 1993 answer, under the heading
"Affirmative Defenses," stated:
1. Plaintiffs are barred by estoppel.
2. Plaintiffs are barred by laches.
3. Plaintiffs are barred by license.
4. Plaintiffs are barred by res judicata.
5.Plaintiffs are barred by accord and
6.Plaintiffs are barred by statute of
7.Defendant reserves the right to assert
additional defenses as may be determined
during the course of discovery.
The Gambles contend that Northstore first raised the additional
affirmative defenses of bona fide purchaser and affirmance in its
April 1994 motion for summary judgment. Northstore argues that
despite its failure to specifically list the two defenses in its
answer, the trial court correctly concluded that the answer
provided the Gambles with adequate notice.
Northstore first asserts that the "essential aspects"
of the bona fide purchaser defense were set forth in its answer.
Northstore explains that in response to the Gambles' factual
allegation in the complaint that "NORTHSTORE . . . purchased
their property from [the] Cruikshank[s]", Northstore answered:
"Deny. Defendant bought the property from Marathon Company . . .
." (emphasis added). In addition, in response to the Gambles'
allegation that the easement agreement was "unilaterally altered
and changed, and then executed by the Cruikshanks," Northstore
responded: "Defendant is without knowledge or information
sufficient to form a belief as to the truth of the . . .
averment, and therefore denies it." From these statements,
Northstore concludes that its answer "alleged that it was an
innocent purchaser for value acting in good faith, i.e., a bona
Northstore also points to specific language in the
answer that it considers sufficient to have raised the defense of
affirmance. Northstore contends that affirmance is a species of
estoppel, a defense which was specifically set forth in the
answer. Northstore further argues that the answer affirmatively
raised the defense of res judicata, a theory which "can have no
other reference" than to the Gambles' prior suit against its
title insurer. Northstore contends that under Alaska's "notice
pleading" rules, the above references to each defense should be
We have stated in the past that pleadings are to be
liberally construed, with the goal being to achieve substantial
justice. Knight v. American Guard & Alert, Inc., 714 P.2d 788,
791 (Alaska 1986); Martin v. Mears, 602 P.2d 421, 427 (Alaska
1979); Schaible v. Fairbanks Medical & Surgical Clinic, Inc., 531
P.2d 1252, 1255-56 (Alaska 1975). The standards governing the
pleading of affirmative defenses under Rule 8(c) are no different
than the liberal approach taken for all pleadings. See Alaska R.
Civ. P. 8(e) ("Each averment of a pleading shall be simple,
concise and direct. No technical forms of pleading or motions
are required."); Wright & Miller, supra, ' 1274, at 455. An
affirmative defense is adequately pleaded if it provides the
opponent fair notice of the nature of the defense. See Rollins,
512 P.2d at 941; c.f. Lumbermens Mut. Casualty Co. v. Continental
Casualty Co., 387 P.2d 104, 111 (Alaska 1963) (observing that
"[g]eneral pleading" of defenses is permissible under theory that
pretrial procedure will result in full development of the
issues). Although courts will give the pleadings a liberal
construction, it is important to note that "such liberal
construction does not permit the pleader to unreasonably catch an
unwary litigant; and such liberality of construction must be
circumscribed by the plain requirements of the rules." Lopez v.
United States Fidelity & Guar. Co., 15 Alaska 633, 637 (1955).
Because this court is in virtually the same position as the trial
court in its ability to assess the adequacy of the pleadings, we
review Northstore's pleadings de novo. Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
Turning first to Northstore's affirmance defense,3 the
Gambles argue that the specifically-pled defenses of "estoppel"
and "res judicata" have prescribed meanings that are clearly not
synonymous with "affirmance." We agree. However, we observe
that in practice, the rarely-used doctrine of affirmance is not
clearly understood and is often closely associated with estoppel
and res judicata, as well as the related doctrines of
ratification, election of remedies, and acceptance of benefits.
See, e.g., 28 Am. Jur. 2d Estoppel and Waiver ' 59 (1966)
("Estoppel is frequently based upon the acceptance and retention,
by one having knowledge or notice of the facts, of benefits from
a transaction, contract, [or] instrument . . . which he might
have rejected or contested."); P.V. Smith, Annotation, Doctrine
of Election of Remedies as Applicable Where Remedies Are Pursued
Against Different Persons, 116 A.L.R. 601, 601-02 (1938) ("The
doctrine of election of remedies is closely related to, and
sometimes not distinguished from, other principles of law and
equity, such as . . . res judicata, . . . ratification, and
estoppel. In fact, the doctrine of election of remedies has been
frequently regarded as an application of the law of estoppel.");
but see 28 Am. Jur. 2d Estoppel and Waiver ' 31 (1966) ("While
both acquiescence and ratification are frequently spoken of as
estoppel, strictly speaking neither can be more than a part of an
estoppel. An estoppel is a legal consequence . . . .").
We believe that although the parties agree that
affirmance constitutes an affirmative defense for the purpose of
Rule 8(c), the fair notice requirements of Rule 8 are not so
stringent as to require Northstore to hone the details of its
defense at such an early stage of the litigation. See 6 James W.
Moore et. al., Moore's Federal Practice ' 56.02, at 24 (2d ed.
1995) ("Pleadings need do little more than indicate generally the
type of litigation that is involved so that both plaintiff and
defendant may have fair notice of the claim and its defense.").
Northstore specifically pleaded defenses which, although not
synonymous with "affirmance," invoke some of the same concerns in
more general terms. We deem the pleadings at issue here
sufficient to raise the defense of "affirmance." Any difficulty
the Gambles experienced in understanding the nature of this
defense could have been remedied by requesting, through
discovery, a more particular basis for the defenses which were
We are less persuaded by the trial court's reading of
Northstore's pleadings with regard to the bona fide purchaser
defense. Unlike the affirmance defense, none of the affirmative
defenses listed in Northstore's answer even hint at the defense
of innocent purchaser. Moreover, the two factual averments that
Northstore identifies from its answer as embodying the essential
aspects of the theory fall far short of the "simple, concise and
direct" approach required by Rule 8(e). The first assertion,
that Northstore "bought" the property, is obscured in a provision
which essentially clarifies the identity of the vendor of
Northstore's lot. The second assertion, in which Northstore
stated that it was "without knowledge or information sufficient
to form a belief as to the truth" of whether the easement was
unilaterally altered, cannot reasonably be equated with an
averment that Northstore acquired the property innocently and in
In so pleading, Northstore employed the practice
described in Civil Rule 8(b), which allows a party to respond to
an averment by stating that it lacks sufficient information to
affirm or deny the allegation; the rule provides that such a
statement shall be treated as a denial. Alaska R. Civ. P. 8(b).
The provision allows a party who either lacks knowledge of the
substance of the allegation or, for whatever reason, is unable to
ascertain whether the allegation is true at that time to deny in
good faith the adverse party's assertion. 2A James W. Moore et.
al., supra, ' 8.22, at 148. Such a pleading does not convey to
one's opponent that at a specific point in the past, one lacked,
in good faith, any knowledge of the facts asserted. A Rule 8(b)
denial for lack of knowledge is simply not the sort of
affirmative pleading which Rule 8(c) minimally demands.
Therefore, we initially conclude that although Northstore's
answer gave the Gambles fair notice of the affirmance defense, it
did not sufficiently indicate Northstore's intent to rely upon
the defense of bona fide purchaser.
2.Northstore's motion for summary judgment
When a litigant fails to comply with Rule 8(c) by
failing to plead in the answer the affirmative defenses which it
intends to invoke, exceptions exist which can allow the error to
be cured and prevent waiver. Because we ultimately remand this
case for further proceedings, we choose to address here whether,
despite its failure to give fair notice of the bona fide
purchaser defense in the answer, Northstore nonetheless
successfully raised this defense.
Alaska follows the widely-used approach which, if undue
prejudice would not be visited upon the opposing party, allows a
litigant to raise new affirmative defenses "at any time" through
a motion for summary judgment. Blake v. Gilbert, 702 P.2d 631,
639 (Alaska 1985) (affirming trial court's decision to allow
reliance on statute of limitations defense first raised in post-
answer motion for summary judgment where no prejudice resulted
from defendant's delay); see also Camarillo v. McCarthy, 998 F.2d
638, 639 (9th Cir. 1993); Healy Tibbits Constr. Co. v. Insurance
Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982). This practice
was born out of the general preference underlying the Civil Rules
that decisions be made on the merits rather than on pleading
technicalities, and in recognition of the fact that Civil Rule 15
allows for liberal amendment of the pleadings. See 6 James W.
Moore et. al., supra, ' 56.17, at 380. Before this exception
to the waiver rule applies, however, we must determine whether
Northstore's attempt to rely upon the bona fide purchaser defense
through its motion for summary judgment unduly prejudiced the
The Gambles have continually complained that they were
prejudiced by Northstore's delay. The Gambles claim that because
they relied upon Northstore's answer, the bona fide purchaser
defense was totally unanticipated, and with discovery closed and
one month remaining before trial, they had insufficient time and
opportunity to prepare a response.
Whether a litigant is unduly prejudiced by an
opponent's post-answer attempt to obtain summary judgment on the
basis of an affirmative defense not set forth in the pleadings
is an inquiry invoking virtually the same concerns as a motion to
amend the pleadings with leave of court.4 See Alaska R. Civ. P.
15(a). In Estate of Thompson v. Mercedes-Benz, Inc., 514 P.2d
1269 (Alaska 1973), we reviewed a pre-trial request to amend the
complaint, observing that although such relief is to be "'freely
given,'" the court must consider whether the opposing party would
be prejudiced. Id. at 1271 (quoting Alaska R. Civ. P. 15(a)).
We noted that several factors may bear upon a finding of
prejudice, including "added expense, a more burdensome and
lengthy trial, or if the issues being raised in the amendment are
remote from the scope of the original case." Id.
In Rutledge v. Alyeska Pipeline Service Co., 727 P.2d
1050 (Alaska 1986), we applied these factors, affirming a trial
court's decision to deny a Rule 15(a) motion to amend because the
potential for increased expense, burden of a more lengthy trial,
and time constraints, brought on by a new claim "only
tangentially related to [the] initial complaint," would have been
too prejudicial to the opposing party. Id. at 1054-55. We
reached a different but analogous result in Wright v. Vickaryous,
598 P.2d 490 (Alaska 1979), in which a plaintiff sought to amend
the complaint to introduce a new legal theory which was based
upon the "same conduct" as complained of in the initial pleading.
Id. at 495. We were unpersuaded by the defendant's allegation of
undue surprise because the new theory "did not widen the scope of
the dispute." Id. Moreover, our opinion specifically advised
that "the remedy for inadequate time to prepare on a new theory
is a continuance, not preventing a trial on the merits of the new
theory." Id. at 496.
We find the present case to be more akin to Wright than
Rutledge and conclude that any hardship experienced by the
Gambles does not outweigh Northstore's right to present, one
month before trial, the additional defense that it was a bona
fide purchaser. Given the general policies that legal disputes
are to be decided on the merits and that leave to amend the
pleadings is to be freely granted, and considering that the
defense of bona fide purchaser is closely related to the facts
presented in the complaint, it would be unjust to hold that the
defense was waived.5 Although it may have inconvenienced the
Gambles to have been faced with a new defense theory only one
month before trial and with discovery virtually over, such
hardship was not undue. Under these circumstances, rather than
claim waiver, a more appropriate remedy would have been for the
Gambles to seek a continuance allowing for additional discovery.
We therefore conclude that with regard to both the
affirmance and bona fide purchaser theories, the trial court did
not err in refusing to find that Northstore waived its defenses.
B.Continuance to Undertake Additional Discovery
Alaska Civil Rule 56(f) allows a party opposing summary
judgment to seek additional time to gather and submit evidence to
justify the party's opposition.6 In the present case, the trial
court observed that although Rule 56(f) may be invoked simply by
submitting an affidavit requesting additional time to oppose the
motion, none was filed by the Gambles. As such, the court did
not address what it termed "the real issue": whether the Gambles
had possessed enough "time to come up with genuine factual issues
to defeat summary judgment." The Gambles argue on appeal that
not only did they make such a request, but that a Rule 56(f)
continuance should have been granted. We agree.
Because the purpose of Rule 56(f) is to provide an
additional safeguard against premature grants of summary
judgment, we have held that requests made pursuant to Rule 56(f)
should be "freely granted." Munn v. Bristol Bay Housing Auth.,
777 P.2d 188, 193 (Alaska 1989); Jennings v. State, 566 P.2d
1304, 1313 (Alaska 1977). We have emphasized, however, that a
litigant seeking relief under Rule 56(f) must "make it clear to
the trial court and the opposing party that he opposes the
summary judgment motion on this ground." Jennings, 566 P.2d at
1313-14 (emphasis added) (holding that trial court did not abuse
its discretion in denying Rule 56(f) relief where no affidavits
were submitted and opposition to summary judgment motion made no
mention of subsection (f)); see also Munn, 777 P.2d at 193
(reiterating clear request requirement of Jennings); Brock v.
Weaver Bros., Inc., 640 P.2d 833, 836-37 (Alaska 1982) ("Assuming
that an unambiguous request for additional time was made pursuant
to Civil Rule 56(f) . . . .").
A request for Rule 56(f) relief need not state what
specific facts further discovery will produce. Munn, 777 P.2d at
193. The request will generally be granted if the party provides
adequate reasons explaining why the party cannot produce facts
necessary to oppose summary judgment within the original time
frame, and if the party has not been dilatory in his use of
discovery. Id.; see also Braun v. Alaska Commercial Fishing &
Agric. Bank, 816 P.2d 140, 145 (Alaska 1991) (affirming denial of
request for Rule 56(f) relief where party was on notice of
defense and was dilatory in not conducting discovery on that
issue); Brock, 640 P.2d at 837 (holding same). We will reverse a
Rule 56(f) decision on appeal only when it is evident that the
trial court has abused its discretion. Munn, 777 P.2d at 192.
Northstore contends that denial of Rule 56(f) relief
was appropriate because the Gambles failed to comply with the
procedural requirements of the rule. Specifically, Northstore
argues that the Gambles failed to file an unambiguous request for
relief, that the Gambles "never expressed any desire to undertake
further discovery," and that after oral argument, the trial court
was the first to expressly mention subsection (f). Northstore
further contends that even if the Gambles did make a proper
request for Rule 56(f) relief, the request should be denied
because the Gambles lacked a specific plan for further discovery
and were dilatory in their efforts to use discovery.
We are unpersuaded by Northstore's view of the case.
The Gambles submitted an Affidavit of Attorney in Opposition to
the Motion to Amend and Motion for Summary Judgment which did not
expressly mention Rule 56(f), but which clearly set forth the
Gambles' desire and justification to undertake additional
discovery. With regard to the bona fide purchaser defense,7 the
Gambles' attorney Albert Maffei affied:
This defense comes as a complete
surprise to the plaintiffs. The plaintiffs
did not prepare their case in light of that
defense since it was not plead [sic].
Now the plaintiffs would be placed in
great prejudice if the Motion To Amend were
granted. The time for trial is approximately
one month from this date. The dates for
discovery and for filing motions have expired
and plaintiffs are now at a great
disadvantage since they did not seek to
discover any of the factual matters which
might be used in opposition to the defense of
bona fide purchaser for value without notice
He continued, "If the Court allows the Motion to Amend, it is
obvious that plaintiffs must proceed with further extensive
discovery." (emphasis added). Maffei reiterated during oral
argument: "In order to oppose the motion or the defense, if you
allow it to be pled, we have to go back and start doing some more
deposition and discovery."
The affidavit also named two persons whom the Gambles
desired to depose: John Niemeyer, Northstore's managing partner;
and Ken Klein, an agent for Northstore who handled the sale of
the subject property. At oral argument, Maffei stated that the
Gambles also wished to depose Ken Kutil, a real estate agent who
may have represented Northstore and Marathon jointly.
We conclude that the Gambles' actions satisfied the
requirement that a party seeking Rule 56(f) relief must make an
"unambiguous request." Brock, 640 P.2d at 836-37. The Gambles'
attorney submitted an affidavit stating that if the court were to
reject their waiver argument, the Gambles would require
additional discovery; the affidavit further explained that the
reason the Gambles required additional time to oppose the motion
was their surprise when Northstore raised an unanticipated
affirmative defense. Although the Gambles were not required to
specify what additional facts they hoped to discover, Munn, 777
P.2d at 193, they nevertheless identified specific people whom
they hoped to depose.
The trial court should have understood that in making
these statements, the Gambles were not simply lending additional
support to their waiver argument. That the trial court actually
realized that an alternative request for a continuance was being
made is evident from Judge Reese's comment that "the real issue"
was not whether the defenses were waived, but whether the Gambles
had possessed enough "time to come up with genuine factual issues
to defeat summary judgment." The trial court may have determined
that a party requesting a continuance for the purpose of opposing
summary judgment must specifically mention Rule 56(f) or must
file a separate motion. However, we have never read either
requirement into the rule. See, e.g., Alaska R. Civ. P. 56(f)
("Should it appear from the affidavits of a party opposing the
motion . . . .") (emphasis added); Jennings, 566 P.2d at 1313-14
(holding that request for Rule 56(f) relief was properly denied
where no mention was made of subsection (f) and party failed to
submit any affidavits in opposition to summary judgment); 10A
Wright & Miller, supra, ' 2740, at 531 (explaining that Federal
Rules 56(e) and (f) are meant to be complementary, in that
opposing party must either submit affidavits to establish genuine
issue for trial under subsection (e) or explain why he cannot yet
do so under subsection (f)).
Thus, we conclude that the Gambles made an unambiguous
request for a continuance with which to undertake additional
discovery. We further conclude that Rule 56(f) relief was
warranted. There is no evidence that the Gambles were dilatory
in their use of discovery. As explained in part III.A. supra,
Northstore did not provide the Gambles fair notice of the bona
fide purchaser defense until it moved for summary judgment.
Therefore, it would be unfair to penalize the Gambles for failing
to conduct sufficient discovery on that issue. Moreover,
although we conclude in part III.A.1. that the affirmance defense
was adequately raised in the answer, given the lack of precision
of Northstore's pleadings, the Gambles' failure to isolate the
specific theory of affirmance cannot be viewed as conclusive
evidence of a lack of diligence on their part.
Because we believe that the Gambles complied with the
procedural requirements of Rule 56(f) and were not dilatory in
their use of discovery, and in light of our previous holdings
that "requests made pursuant to Rule 56(f) should be freely
granted," Jennings, 566 P.2d at 1313, we conclude that the trial
court abused its discretion in not permitting the Gambles to
undertake further discovery in order to oppose Northstore's
motion. We therefore reverse and remand for additional
For the foregoing reasons, we conclude that Northstore
properly raised the defenses of bona fide purchaser and
affirmance. However, because Northstore's pleadings lacked
specificity, and because the Gambles made an unambiguous request
for a continuance with which to undertake additional discovery,
we conclude that the trial court abused its discretion in
refusing to grant the Gambles additional time to oppose the
summary judgment motion under Civil Rule 56(f). We therefore
REVERSE the judgment in favor of Northstore and REMAND for
additional proceedings consistent with this opinion.
1 The trial court rejected Northstore's third argument for
summary judgment, namely that Northstore was entitled to summary
judgment because the Gambles took the property by quitclaim deed.
Northstore did not cross-appeal the trial court's ruling on this
issue, and we do not address it.
2 Reformation is an equitable remedy used to make a
written contract "express the bargain which the parties desired
to put in writing." Durkee v. Busk, 355 P.2d 588, 591 (Alaska
1960). The remedy is reserved for cases in which, through mutual
mistake or its equivalent, the writing does not conform to the
parties' clear intent. Oaksmith v. Brusich, 774 P.2d 191, 197
(Alaska 1989); Riley v. Northern Commercial Co., 648 P.2d 961,
969 (Alaska 1982). The equivalent of mutual mistake is present
when one party executes a document knowing that the writing does
not accurately reflect what was intended. Riley, 648 P.2d at 969
(citing Straight v. Hill, 622 P.2d 425, 428 (Alaska 1981)).
3 The Restatement (Second) of Restitution defines the act
of affirmance as "an election by a party having the power of
avoidance to treat a voidable transaction as valid." Restatement
(Second) of Restitution ' 68(1) cmt. a (1937). The Restatement
further explains that "[t]he affirmance of a voidable transaction
by a person who, and who alone, can avoid it because of fraud or
mistake terminates his right to restitution." Id. at ' 68.
4 A post-answer motion for summary judgment which raises
new affirmative defenses is functionally equivalent to a motion
to amend the pleadings with leave of court plus a standard motion
for summary judgment.
5 In reaching this conclusion we do not mean to imply that
the bona fide purchaser defense would be valid if the deed proves
to have been forged. As that point has not been briefed, we
express no view concerning it.
6 Rule 56(f) provides:
When Affidavits Are Unavailable. Should it
appear from the affidavits of a party
opposing the motion that the party cannot for
reasons stated present by affidavit facts
essential to justify the party's opposition,
the court may refuse the application for
judgment or may order a continuance to permit
affidavits to be obtained or depositions to
be taken or discovery to be had or may make
such other order as is just.
7 The Gambles did not specifically address the affirmance
defense, presumably because at that time, Northstore's motion to
amend was limited to adding the bona fide purchaser defense.
8 In light of our decision to reverse the entry of
summary judgment and remand for additional discovery, we hereby
vacate the trial court's award of attorney's fees in favor of
Northstore. We further decline to consider Northstore's cross-
appeal pertaining to the fee award.