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Alaska Continental, Inc. v. Trickey (2/7/97), 933 P 2d 528
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, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA CONTINENTAL, INC., )
) Supreme Court No. S-6878
) Superior Court No.
v. ) 3AN-89-8204 CI
HOWARD S. TRICKEY, WILLIAM K. ) O P I N I O N
JERMAIN, PAUL BERGQUIST, )
GREGG K. CLAPPER, CHARLES A. ) [No. 4477 - February 7, 1997]
DUNNAGAN, TIMOTHY CRAIG, )
BARBARA LYNN FURIN for )
DR. GREGORY FURIN, and KEY )
BANCSHARES OF ALASKA, INC. )
d/b/a KEY BANK OF ALASKA, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Warren G. Kellicut and Terry A.
Venneberg, Anchorage, for Appellant. Thomas
P. Amodio and Stephen H. Hutchings, Birch,
Horton, Bittner and Cherot, Anchorage, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice pro tem.
This appeal involves a suit between two creditors of a
bankrupt corporation. Resolution of the appeal's merits requires
us to determine when a newly formed corporation may litigate a
claim of a dissolved predecessor corporation. We conclude that
Alaska Continental, Inc. can properly assert claims once possessed
by its dissolved predecessor and shareholders. We further conclude
that with one exception Appellant's claims are devoid of merit.
II. FACTS AND PROCEEDINGS
Alaska Continental, Inc. (ACI) sold an Anchorage radio
station to Pacific Rim Broadcasting, Inc. (PRB) in 1982. In
exchange, ACI received cash, a note in the amount of $600,000, a
security interest in PRB property, and a pledge of the 9,800 shares
of PRB stock then outstanding. The pledge of stock guaranteed ACI
certain rights and remedies in the event of a PRB default.
In November 1983 ACI was involuntarily dissolved by the
State of Alaska for failure to pay its corporate taxes. Although
ACI's counsel was notified of the corporation's dissolution,
counsel for ACI apparently did not inform his client. For the next
several years, the corporation continued to operate as "ACI,"
despite its loss of corporate status.
During this time PRB began to experience financial
difficulties. In 1986 it negotiated a short-term loan from Alaska
Pacific Bank, the predecessor-in-interest to Appellee Key Bank of
Alaska (KBA). As part of that loan agreement, KBA received a
security interest in all of PRB's property other than the radio
station acquired from ACI, and a pledge of 49,000 shares of PRB
stock. The pledge of stock was made subject to interests already
pledged to ACI.
KBA also negotiated a standstill agreement with ACI. ACI
agreed not to foreclose on PRB for nine months. In exchange, ACI
would receive some of the proceeds from the KBA loan in partial
satisfaction of the PRB debt. The standstill agreement also gave
KBA the option to purchase ACI's PRB stock for the price of PRB's
remaining debt to ACI. To secure KBA's second-tier interest in the
ACI-pledged stock, ACI delivered the stock into KBA's possession.
In April 1988 PRB filed for bankruptcy. KBA maintained
possession of ACI's now worthless PRB stock. In 1989 ACI
discovered that its corporate status had lapsed. That August the
same shareholders and officers reincorporated as "ACI"(ACI II),
re-electing the same officers and directors and assigning the same
amount of stock to the same shareholders. One month later, ACI II
filed suit against the directors of PRB. It amended its complaint
to include KBA as a defendant, alleging five causes of action in
tort and five in contract. In 1994 ACI II accepted $63,000 as part
of the bankruptcy liquidation of PRB and settled its suit against
the PRB directors. Thereafter the superior court granted defendant
KBA's motion for summary judgment on all of ACI II's tort and
contract claims. ACI II appeals the superior court's grant of
summary judgment in KBA's favor.
A. Can ACI II Maintain This Suit against Appellees?
Review of the superior court's grant of summary judgment
to KBA first requires that we consider the effect of ACI's 1983
dissolution on ACI II's right to maintain this action.(EN1) ACI
has taken on several different forms over the years. These
include: ACI, the original corporation that existed before the 1983
dissolution; the entity formerly known as ACI (shareholders' ACI),
the shareholders and officers who transacted business from 1983 to
1989 in an unincorporated form; and ACI II, which was incorporated
As an initial matter, we note that Alaska corporations
law as it existed during this period would not allow ACI II to
retroactively assume the legal status of ACI and shareholders' ACI.
Former AS 10.05.519(d) allowed only two years in which to reinstate
a dissolved corporation. It provided that
[a] corporation dissolved by the commissioner
under the provisions of this section may be
reinstated by the commissioner at any time
within two years from the date of the
certificate of involuntary dissolution.
Because six years passed between the dissolution of ACI and the
incorporation of ACI II, the new corporation cannot claim to be the
same entity that existed before 1989. It therefore requires an
alternate basis to assume and maintain causes of actions that
accrued to ACI and shareholders' ACI.
Such basis exists in former AS 10.05.519(f) (current AS
10.06.633(g)). This statute allows a lapsed corporation's rights
to be assigned to a successor in interest. It provides that
[a]n action arising out of a contract assigned
by a corporation dissolved under this section
may be brought in the name of the assignee.
The fact of assignment and of purchase by the
plaintiff shall be set out in the complaint or
Here ACI II was incorporated and formed by the same
shareholders and officers who comprised the original ACI and
represented the firm during the interregnum. Given this unbroken
continuity in membership, we conclude the causes of action held by
ACI were impliedly assigned by operation of law to shareholders'
ACI and subsequently impliedly assigned by operation of law by
shareholders' ACI to ACI II. (EN2)
AS 10.05.519(f) also required any assignment to be made
explicit in the complaint, which was not done here. However, this
notice requirement was not intended to be applied to circumstances
presented by the case at bar in which a dissolved corporation's
shareholders impliedly assign by operation of law rights to
themselves in a new corporate form. Rather, the requirement
contemplates situations where shareholders of a defunct corporation
have transferred rights to third parties. It thus speaks of
assignment and purchase, indicating that the assigned rights are no
longer held by the same individuals but instead have been
transferred to a different and separate party. The purpose of this
requirement is to place a defendant on notice that a different
party now holds claims against it. Particularly in a case such as
this one, where Appellees were not even aware of the evolutions in
Appellant's corporate identity until late in their dealings, notice
is unnecessary. We thus conclude that all causes of action
accruing to ACI and shareholders' ACI now repose in ACI II. (EN3)
B. ACI II's Contract and Tort Claims
1. Contract Claim No. 1
ACI II claims that KBA orally committed to lend money to
PRB under terms proposed by Heller Financial, calling for a loan of
over $3 million payable over seven years, and asserts that ACI II
as a third party beneficiary would be able to sue to enforce the
contract. There are several problems with this claim.
First, the alleged contract violates AS 09.25.010,
Alaska's Statute of Frauds. (EN4) While ACI II claims that the
bank official with whom it spoke pointed to a written agreement,
ACI II does not claim that the agreement was signed. (EN5) The
contract, if it existed at all, must have been oral, as ACI II
admits. Thus, the contract violates the statute of frauds because
it was to be performed over a period of more than one year, and
additionally because it involved a sum of money far in excess of
that specified in the statute. Therefore the alleged contract is
void and the superior court's grant of summary judgment on the
issue is affirmed.
Further, the superior court's grant of summary judgment
as to this contract claim is sustainable because KBA's alleged
commitment, even if enforceable by PRB, creates no right of action
in third party ACI II. Generally, a third party must present
evidence that it was an intended or contemplated beneficiary of a
contract before it may sue to enforce it. White v. Alaska Ins.
Guaranty Ass'n, 592 P.2d 367, 369 (Alaska 1979) (quoting Century
Ins. Agency v. City Commerce Corp., 396 P.2d 80, 82 (Alaska 1964)).
Mere reliance on the contract does not make the third party an
intended beneficiary. Id.
In the case of a creditor-beneficiary, the established
rule is that "a contract to provide a borrower with funds to pay
his debts does not give creditors a right to enforce the contract
as third party beneficiaries." Exchange Bank & Trust Co. v. Lone
Star Life Ins. Co., 546 S.W.2d 948, 950 (Tex. Civ. App. 1977).
Rights vest in the creditor only when the lender promises to make
payment directly to the creditor. This distinction is illustrated
in Restatement (Second) of Contracts sec. 302, cmt b, illus. 3: B
lends money to A, who owes C, D, and E. "If the promise is
interpreted as a promise that B will pay C, D, and E, they are
intended beneficiaries." On the other hand, "if the money is to be
paid to A in order that he may be provided with money to pay C, D,
and E, they are at most incidental beneficiaries."
Explanation for this rule is offered in Lone Star. Even
when creditors are named in a lender's commitment to a borrower, if
funds are to be disbursed only to the borrower, payment of the
creditors' claims will ultimately depend "on the decision of the
borrower." Lone Star, 546 S.W.2d at 952. The borrower's agency
thus disrupts any relationship between the creditor and the lender.
Because it is the borrower who receives the proceeds of the loan,
any benefit to the creditor is purely incidental.
Here ACI II never alleged that payments from the supposed
loans would go to anyone other than PRB. While KBA may have
considered PRB's debt to ACI II when negotiating the loans, because
the funds would be disbursed only to PRB, any actual agreement
would have created no actionable relationship between KBA and ACI
2. Contract Claim No. 2
ACI II notes that on December 6, 1986, KBA wrote a
commitment letter to loan PRB $2.85 million. ACI II claims that
this commitment letter constituted a contract, to which ACI II was
a third party beneficiary. The most favorable inference we can
draw is that such a letter constitutes only an offer. The letter
specifically indicated that it was an offer in the last paragraph,
which stated, "Please evidence your acceptance of the foregoing by
signing . . . ."
As the Supreme Court of Indiana wrote in evaluating a
In our view, the written loan application
. . . was a solicitation for offers directed
to the bank. The application was not an offer
to borrow the money because, even if the
application had been accepted by the bank,
[the applicants] would still not have been
obligated to borrow money from the bank and
any supposed contract would fail for lack of
mutuality. The issuance of the loan
commitment by the bank constituted an offer by
the bank to . . . lend the money pursuant to
the terms and conditions of the commitment.
First Nat. Bank of Logansport v. Logan Mfg. Co., 577 N.E.2d 949,
953 (Ind. 1991).
Therefore, if KBA's commitment letter is an offer, it is
axiomatic that a binding contract could only be formed if PRB
accepted the offer. It did not. The letter was addressed to two
officers of PRB and there were two signature lines provided at the
end of the letter with the names of the relevant officers printed
beneath them. Only one of the officers signed the form, though the
form clearly indicated that both signatures were needed to evidence
acceptance. Furthermore, PRB's acceptance of the second short-term
loan contract clearly indicates that it did not intend to accept
the first short-term loan contract. Therefore, PRB did not accept
the offer pertaining to the first short-term loan contract, and no
contract was formed. Since there was no contract, ACI II can have
no third party beneficiary rights. We affirm the superior court's
grant of summary judgment as to the second claim.
Additionally, we conclude that summary judgment was
correctly granted as to this contract claim on the basis of the
alternative rationale we expressed in our discussion of Contract
Claim No. 1 (i.e., that KBA's alleged commitment, even if
enforceable by PRB, creates no right of action in third party ACI
3. Contract Claim No. 3
ACI II next claims that KBA owes it $42,750 more than the
$157,750 it paid to ACI II under the standstill agreement.
The standstill agreement contains two relevant recitals.
The first states that KBA will create a credit facility for PRB to
pay ACI $157,750 to cure past defaults. The second states that KBA
will create a credit facility for PRB to pay ACI II $47,750 as
prepayment on the loan. Article I of the agreement states that ACI
II's obligations were triggered upon receipt of $157,750. The
agreement makes no other mention of the $47,750 payment.
ACI II asserts that the amount of money entered in
Article I is incorrect, and that KBA should have paid it the total
of the two amounts listed in the recitals, or $200,500. KBA,
however, argues that the amount listed in Article I was correct,
but that the first recital was incorrect and should have specified
that $115,000 was owed for prior debt-service. Therefore, KBA
contends that it has satisfied its contractual obligation. Thus,
both parties admit that a mistake was made, but disagree as to
whether the mistake was made in the first recital or in Article I.
Normally, interpretation of words in a contract is a task
reserved for the court. Fairbanks N. Star Bor. v. Tundra Tours,
Inc., 719 P.2d 1020, 1024 (Alaska 1986); Alyeska Pipeline Services
Co. v. O'Kelley, 645 P.2d 767, 771 n.2 (Alaska 1982). However, the
intent of the parties when entering a contract is a question of
fact. Furthermore, summary judgment is not proper where the
evidence before the superior court establishes that a factual
dispute exists as to the parties' intent. Martech Const. Co. v.
Ogden Env. Services, Inc., 852 P.2d 1146, 1149 (Alaska 1993).
Here, we conclude that the parties' intent cannot be
established by reference to the standstill agreement alone.
Therefore we hold that summary judgment on this claim for relief
was erroneous and should be set aside.
4. Contract Claim No. 4
ACI II's next contract claim concerns whether, under the
standstill agreement, KBA should have been allowed to keep the PRB
stock following ACI II's May 1988 demand that KBA return the stock
after PRB had filed for bankruptcy.
The standstill agreement contained a clause stating:
Alaska Continental hereby grants to Bank an
irrevocable option to purchase by assignment
or otherwise that certain August 31, 1982 note
and Alaska Continental's interest under the
GENERAL PLEDGE AGREEMENT and FINANCING
STATEMENT and AGREEMENT, for an amount equal
to the outstanding principal plus accrued
interest under the Note for cash.
ACI II claims that KBA exercised this option by refusing
to return possession of the PRB stock to ACI II following its May
1988 demand. KBA disagrees. It claims that it never exercised the
option since it offered to meet with ACI II to discuss the issue.
KBA also notes that the stock was worthless following PRB's
bankruptcy, and implies that PRB's listing of ACI II as an
unsecured creditor informed ACI II of KBA's decision not to return
KBA's refusal to return the worthless stock cannot be
considered an exercise of its option to release the stock under the
standstill agreement. Retaining possession constitutes an exercise
of an option only if the resulting terms are reasonable. Here they
are not. While PRB's remaining debt to ACI is substantial, the
stock supposedly exchanged in consideration has no value. We
therefore decline to hold that KBA's continued exercise of dominion
over the stock constituted an exercise of the standstill agreement
5. Contract Claim No. 5
This claim concerns the aborted sale of radio station
KVOK from PRB to ACI II. ACI claims that KBA breached a promise to
allow PRB to transfer the station to ACI in lieu of the money which
PRB owed to ACI II. The bank's approval was necessary because it
held a security interest in all of PRB. Though the transfer would
deprive KBA of its security interest in the collateral constituted
by KVOK, as a result of the transfer the bank expected to gain a
security interest in the collateral in which, until that time, ACI
II had held a priority interest. ACI II argues that a letter sent
from KBA to PRB constitutes a promise by the bank, to which ACI
apparently claims the status of a third party beneficiary.
We disagree with ACI II's claim that the letter
constitutes a promise. It states, "Our final approval of that
transaction is subject to our satisfactory review of the
documents." In conducting its review, KBA discovered that ACI had
let lapse in 1987 some of its UCC filing statements. As a result,
the bank questioned whether ACI had a right to transfer its
interest in the collateral, and revoked its approval of the deal.
Thus, KBA's letter specifically stated that the deal was subject to
its review of documents. When KBA failed in fact to satisfy itself
that the documents showed it would receive adequate protection, it
called off the deal.
This contract claim fails for lack of finality. As noted
above, KBA advised ACI that its final approval was subject to its
review. ACI's offer to accept its note for the radio station was
never accepted by KBA. This absence of a contractual relationship
between the parties justifies summary judgment on this claim.
6. Tortious Interference Claim
ACI II claims that the bank tortiously interfered with
ACI's contract rights under the original sale agreement between ACI
and PRB, the pledge agreement whereby ACI acquired a secured
interest in the PRB stock, and the security agreement.
Essentially, ACI II argues that the bank induced PRB to break its
earlier agreements with ACI by means of the 1986 standstill
agreement. However, ACI was a party to the standstill agreement
and specifically sanctioned KBA's actions in relation to that
agreement. Furthermore, ACI's president assisted in the delivery
of the stock to KBA.
ACI II advances no facts in support of its tortious
interference claim. The only modifications in ACI's relationship
with PRB instigated by KBA are those ACI acceded to in the
standstill agreement. If KBA interfered with ACI's rights, it was
with ACI's approval. We conclude that ACI II has no meritorious
basis for this claim. Therefore we affirm the superior court's
grant of summary judgment on ACI II's tortious interference claim.
7. Alleged Breaches of Fiduciary Duties
ACI II complains that KBA failed to disclose PRB's
issuance of additional stock and that it subordinated ACI's
interests to its own in the standstill agreement. It contends that
these actions breached fiduciary duties owed as a result of the
bailment of ACI's PRB stock.
KBA's status as bailee does not translate into status as
a fiduciary. Absent contractual modification, a bailee's liability
is limited to "loss or injury to the bailed goods caused by his
failure to exercise the degree of care of a reasonably careful
owner." Dresser Indus., Inc. v. Foss Launch & Tug Co., 560 P.2d
393, 395 (Alaska 1977). No other duties were owed. Aside from the
standstill agreement and stock bailment, KBA and ACI are joined
only by the circumstance of their both having extended credit to a
failed enterprise. No fiduciary duties arise from this
commonality. (EN8) Since KBA was not ACI's fiduciary, the superior
court's rejection of ACI's duty-based claims was proper.
8. Conversion Claim
ACI claims KBA converted the PRB stock. Conversion is
"an intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to control
it that the actor may justly be required to pay the other the full
value of the chattel." McKibben v. Mohawk Oil Co., 667 P.2d 1223,
1228 (Alaska 1983) (quoting Restatement (Second) of Torts sec.
222A). In May 1988 ACI demanded that KBA immediately tender all
PRB stock in its possession. KBA claimed a first interest in some
of that stock and offered to meet with ACI to sort out its claims.
ACI did not follow up on that offer.
Under these circumstances, we hold that a conversion did
not occur. The Restatement of Torts looks to the following factors
in determining whether an actor has converted another's chattel:
the actor's intent to assert a right in fact inconsistent with the
other's right of control; the actor's good faith; and the
inconvenience and expense caused to the other party. Restatement
(Second) of Torts sec. 222A(2)(b), (c), and (f). The Restatement
also emphasizes that the "defendant ordinarily is not required to
do more than permit the plaintiff to come and get the chattel."
Id. at sec. 237, cmt. g.
Here ACI did not raise a genuine issue of material fact
as to whether KBA acted in bad faith or with the intent to assert
a right to permanently possess ACI's stock holdings. Moreover,
since the stock is admittedly worthless, any damage to ACI is
minimal. Indeed, by offering to meet with ACI to resolve the
dispute, KBA effectively offered to allow ACI to retrieve its
shares of stock. Thus we discern no basis for disturbing the
superior court's ruling granting summary judgment against ACI II on
its conversion claim.
9. Breach of the Implied Covenant of Good Faith and
ACI II claims that KBA breached a duty of good faith and
fair dealing, that the bank was a fiduciary of ACI, and that as
such the bank committed a tort. However, ACI II does not
satisfactorily explain how the bank was anything more than a
bailee. The duties of a bailee are discussed in subsection 7
above. ACI II does not cite any case law which supports the
proposition that bailees have greater duties, nor does ACI II claim
that any of the normally recognized duties arising from a bailment
were breached. Therefore we uphold the superior court's grant of
summary judgment. (EN9)
The superior court's grant of summary judgment in favor
of Appellees is AFFIRMED as to all claims advanced by ACI II with
the exception of ACI II's Contract Claim No. 3. As to Contract
Claim No. 3, the superior court's grant of summary judgment is
REVERSED and VACATED and the claim REMANDED to the superior court
for further proceedings not inconsistent with this opinion.
1. Because all claims were disposed of by the superior court on
summary judgment, we review de novo. Fairbanks N. Star Borough v.
Lakeview Enterprises, 897 P.2d 47, 53 n.7 (Alaska 1995). We may
affirm grants of summary judgment on grounds other than those
advanced by the superior court or the parties. Native Village of
Eyak v. GC Contractors, 658 P.2d 756, 758 (Alaska 1983).
2. United States v. Med O Farm, Inc., 701 F.2d 88, 90 (9th Cir.
1983) (transfer of all stock in a corporation implies transfer of
an interest in the underlying assets). See also State ex rel.
Dep't of Highways v. Martin, 572 P.2d 611 (Okl. App. 1977)
(dissolution of corporation does not extinguish its contractual
rights, which may be enforced upon reinstatement). Cf. Ridgeland
Box Mfg. Co. v. Sinclair Refining Co., 56 S.E.2d 585 (S.C. 1949)
(dissolved corporation may bring action for damages in its own name
rather than in name of its trustees in liquidation).
In Gamalski Hardware, Inc. v. Baird Co., 299 N.W. 757 (Mich.
1941), the defendant opposed a plaintiff corporation's action for
replevin on the ground it lacked standing after its corporate
charter had been voided by the state for failure to pay franchise
fees. The court noted that the three years allowed for winding up
the corporation's affairs had lapsed. Id. at 759. It nevertheless
neither a foreign or a domestic corporation by
doing business in this state in violation of
the provision of the General Corporation Act
. . . shall be subjected to a forfeiture of
its property by refusal of the courts to
entertain an action of this nature brought for
the purpose of determining the title, and the
right of possession, to the property involved
in [a] replevin action. To hold otherwise
would be to say that the property of a
corporation, whose corporate franchise has
been forfeited may be confiscated by any one
who by force or subterfuge is able to get
possession thereof. To refuse redress through
the courts under these circumstances is a
deprivation of law and justice to the
enforcement of property rights.
Id. at 760.
Because ACI did not reincorporate within the two years
permitted by former AS 10.05.519(d), it cannot press its claims as
the same entity which had existed previously. However, that the
time allowed for reinstatement has expired does not imply that a
legal transfer of rights to a separate entity is precluded. Such
a construction would allow contracting partners to breach their
agreements and take advantage of a lapsed firm. Legal rights
cannot be allowed to fade into the mist simply because a
corporation has lost its charter. We therefore adhere to the
reasoning of Gamalski. When a corporate franchise has been voided
and conditions for its reanimation cannot be satisfied, all rights
of action accruing to the former entity are impliedly assigned by
operation of law to the shareholders or any new corporation which
they or their successors in interest have formed.
3. Our holding that the claims in question were impliedly
assigned by operation of law from ACI to shareholders' ACI and then
to ACI II obviates the need to remand this aspect of the appeal to
the superior court for a determination of the real party in
interest pursuant to Alaska Civil Rule 17(a) and (b).
Subsection (a) of Civil Rule 17 reads in part as follows:
No action shall be dismissed on the ground
that it is not prosecuted in the name of the
real party in interest until a reasonable time
has been allowed after objection for
ratification of commencement of the action by,
or joinder or substitution of, the real party
in interest; and such ratification, joinder,
or substitution shall have the same effect as
if the action had been commenced in the name
of the real party in interest.
4. AS 09.25.010 provides:
(a) In the following cases and under the
following conditions an agreement, promise or
undertaking is unenforceable unless it or some
note or memorandum of it is in writing and
subscribed by the party charged or by an agent
of that party:
(1) an agreement that by its terms is not to
be performed within a year from the making of
. . . .
(13) an agreement to lend more than $50,000 or
to grant or extend credit of more than
$50,000, if the loan or grant or extension of
credit is not primarily for personal, family,
or household purposes and if the person who
agrees to lend or grant or extend credit is
engaged in the business of lending or
arranging for the lending of money or the
granting of extension of credit . . . .
5. The word "subscribed,"as used in the statute of frauds,
means a signature of the person to be charged placed immediately at
the end of a printed or written instrument. Geist v. O'Conner, 92
F. Supp. 451, 455 (D. Alaska 1950).
6. Cases cited by ACI II are consistent with this conclusion.
ACI II contends that Great Western Sav. Bank v. George W. Easley
Co., 778 P.2d 569 (Alaska 1989), establishes its third party
beneficiary status. In that case, we did hold that the defendant
lender's loan to a borrower created enforceable rights in a third
party creditor. Id. at 578. However, there the lender had agreed
that proceeds from the loan would be paid directly to the creditor.
Id. at 574-75. ACI II also cites Kennedy Assocs., Inc. v. Fischer,
667 P.2d 174 (Alaska 1983). In that case, the creditor had
participated in the execution of the loan agreement and even paid
a commitment fee. Id. at 177 and n.1.
7. Cf. Restatement (Second) of Contracts sec. 69, illus. 10:
Under a claim of right made in error but in
good faith, A digs a well on B's unused land
and takes water therefrom which has no market
value and no value to B, doing no injury to
the value of the land. B notifies A that he
will charge A $50 a day for every day on which
A takes water from his land. Even after it is
adjudicated that A's right is nonexistent, A
does not accept B's terms by taking water.
8. Appellant's reliance on Carter v. Hoblit, 755 P.2d 1084
(Alaska 1988), is misplaced. There we declared "a fiduciary
relationship will arise where one voluntarily acts as the agent of
another." Id. at 1086. Appellant points to nothing in the record
that would support a finding that KBA served as ACI's agent.
9. Our holdings make it unnecessary to reach any other issue
argued in this appeal. We note that ACI II claims that the
superior court should have disqualified KBA's attorneys. However,
since the superior court never ruled on the disqualification
motion, the issue is not ripe for adjudication by this court.