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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Valdez Fisheries Development Assoc., Inc. v. Alyeska Pipeline Service Company (4/19/2002) sp-5558

Valdez Fisheries Development Assoc., Inc. v. Alyeska Pipeline Service Company (4/19/2002) sp-5558

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


VALDEZ FISHERIES DEVELOPMENT  )
ASSOCIATION,  INC.,                 )    Supreme  Court  Nos.  S-
8280/8549
                                   )
          Appellant/Cross-Appellee,     )    Superior Court No.
                                   )    3AN-95-3500 CI
     v.                            )
                                   )    O P I N I O N
ALYESKA PIPELINE SERVICE      )
COMPANY,                      )    [No. 5558 - April 19, 2002]
                                   )
          Appellee/Cross-Appellant.     )
_____________________________________)
                                   )
SEA HAWK SEAFOODS, INC.,      )
                                   )     Supreme  Court  Nos.  S-
8330/8549
          Appellant/Cross-Appellee,     )
                                   )
     v.                            )
                                   )
ALYESKA PIPELINE SERVICE      )
COMPANY,                      )
                                   )
          Appellee/Cross-Appellant.     )
_____________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:   Rebecca S. Copeland,  Koval  &
          Featherly,      P.C.,     Anchorage,      for
          Appellant/Cross-Appellee   Valdez   Fisheries
          Development  Association,  Inc.   Michael  T.
          Schein,  Maltman Reed North Ahrens & Malnati,
          John G. Young, Young deNormandie & Oscarsson,
          and  Kevin  P. Sullivan, Sullivan & Thoreson,
          Seattle,   Washington  for   Appellant/Cross-
          Appellee  Sea  Hawk Seafoods, Inc.  James  E.
          Torgerson  and  Andrew  F.  Behrend,   Heller
          Ehrman White & McAuliffe LLP, Anchorage,  for
          Appellee/Cross-Appellant   Alyeska   Pipeline
          Service Company.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.
          BRYNER, Justice, dissenting.

I.   INTRODUCTION

          We  address here claims arising from a letter sent  and

statements  made  by  Alyeska  Pipeline  Service  Company  during

negotiations  for  a  proposed  three-way  transaction  involving

Alyeska,   Sea   Hawk  Seafoods,  Inc.,  and   Valdez   Fisheries

Development Association, Inc.  Because Valdez Fisheries complaint

against  Alyeska did not state a claim on which relief  could  be

granted,  we  hold  that  it  was not  error  to  dismiss  Valdez

Fisheries  claims.   And because there are no genuine  issues  of

material fact, we hold that it was not error to dismiss Sea Hawks

claims on summary judgment.  We therefore affirm in all respects.

II.  FACTS AND PROCEEDINGS

          I.   In December 1993 James McHale, an Alyeska Pipeline Service

Company  manager, made a presentation to the Valdez City  Council

asking  the city to provide a wildlife rehabilitation center  for

Alyeskas use in event of an oil spill.1  In a later city  council

meeting,  Alyeska  faced  strong  opposition  from  the  business

community,  which wanted Alyeska to obtain the  center  from  the

private sector rather than the city.  Raymond Cesarini, president

of  Sea Hawk Seafoods, then suggested to McHale that Alyeska  buy

Sea  Hawks plant for use as a rehabilitation center.  McHale said

that  Alyeska  was  already thinking favorably  of  using  Valdez

Fisheries  Development Association for the project and  suggested

that Sea Hawk contact Valdez Fisheries.

          Cesarini then offered to sell Sea Hawks plant to Valdez

Fisheries so Valdez Fisheries could use the plant in its proposal

to  Alyeska.  In January 1994 Cesarini again spoke with  Alyeskas

McHale.   McHale again stated that Alyeska was thinking favorably

of  using  [Valdez Fisheries] for the project and suggested  that

          Cesarini speak with Valdez Fisheries about a  win,  win

arrangement whereby Sea Hawk would sell its processing  plant  to

[Valdez Fisheries] and [Valdez Fisheries] in turn would lease the

plant  to  Alyeska.  McHale described the arrangement as mutually

beneficial   because  it  would  allow  Alyeska   to   meet   its

environmental obligations, Sea Hawk to absolve itself of existing

liabilities, and Valdez Fisheries to have a source of  income  to

help support its fish hatchery operations.

          Cesarini  met  with  McHale for a third  time  in  mid-

January  1994  and expressed concern about selling the  plant  to

Valdez  Fisheries  rather than directly  to  Alyeska  because  of

Valdez  Fisheries  financial problems.   Cesarini  declared  that

McHale  confirmed that [Valdez Fisheries] would get  the  Alyeska

contract, utilizing the Sea Hawk plant.  Cesarini later  declared

that McHale also promised me that, if for any reason Alyeska  did

not  lease  the  Sea Hawk plant from [Valdez Fisheries],  .  .  .

Alyeska would lease the Sea Hawk plant directly from Sea Hawk  on

the same terms and conditions.

          In  January 1994 Alyeska sent many companies, including

Valdez  Fisheries, a letter soliciting proposals for the wildlife

rehabilitation center.  Soon thereafter Valdez Fisheries and  Sea

Hawk signed an agreement for the sale of the Sea Hawk facility to

Valdez  Fisheries  for  $2.5  million,  contingent  upon  Alyeska

awarding  the wildlife rehabilitation center contract  to  Valdez

Fisheries.  The Sea Hawk-Valdez Fisheries sales agreement was not

to  become effective until Valdez Fisheries gave Sea Hawk written

notice  that  Alyeska had approved Valdez Fisheries  proposal  to

lease  the  property  to  Alyeska as  a  wildlife  rehabilitation

center.   The contract permitted Sea Hawk to revoke the agreement

before  the  effective  date upon five-days  notice.   After  the

effective  date, Sea Hawk would no longer be able to  revoke  the

agreement,  but the purchase price would increase  $500  per  day

until closing.

          Valdez  Fisheries  submitted a wildlife  rehabilitation

center  proposal to Alyeska on January 25, 1994.  In  April  1994

Alyeska  informed all bid applicants, including Valdez Fisheries,

that  it  was  unable to select a contractor from  the  proposals

received; it invited bidders to reconsider the cost proposed  and

if  [their]  review result[ed] in a cost reduction,  [to]  please

submit  a revised cost proposal.  Valdez Fisheries then submitted

a  revised proposal, offering three alternative leases,  a  five-

year  lease  at $43,000 per month, a seven-year lease at  $40,000

per month, or a ten-year lease at $35,000 per month.2

          By  letter  of May 6, 1994 Alyeska responded to  Valdez

Fisheries bid submittals stating:

          We  have  completed our review of the revised
          proposals   received  in  response   to   our
          invitation   TAPS/5890  for   A150   Wildlife
          Rehabilitation Center.
          
          This  is  to  inform  you  that  based  on  a
          thorough evaluation of all factors, you  have
          been  selected as the winning  bidder.   Your
          proposal   was  deemed  to  best   meet   our
          requirements for this facility.
          
          We intend to begin the process of negotiating
          a  contract  as soon as possible.   For  your
          planning  purposes, we would  like  to  begin
          discussions  the week of May 16,  1994.   You
          will  be  contacted by telephone to  schedule
          the place and time to meet.
          
          We  look  forward to a successful association
          between  our  two companies.   This  facility
          will  be a welcome addition to our oil  spill
          contingency program.[3]
          
(Emphasis added.)

          Valdez Fisheries faxed a copy of Alyeskas letter to Sea

Hawk;  Valdez Fisheries and Sea Hawk thereafter acted as  if  the

effective date of their contract for sale had been triggered.

          In June 1994 Alyeska and Valdez Fisheries began meeting

to  negotiate the contract.  Valdez Fisheries prepared a draft of

the  lease  agreement  and  sent it to  Alyeska  to  serve  as  a

framework  for  the meetings to follow.  But at a  July  7,  1994

meeting, Alyeska advised Valdez Fisheries that it was reanalyzing

the  costs of the wildlife rehabilitation center and declined  to

          discuss further the finalization of the lease agreement.  At this

meeting, Alyeska also asked Valdez Fisheries about the status  of

[the] negotiations with Sea Hawk.

           In  a  July  29,  1994 letter, Alyeska advised  Valdez

Fisheries  not  to  expend funds on developing the  center  until

Alyeska  notified  it  to proceed.  The letter  also  included  a

revised  program and facility space requirements.  On  August  8,

1994  Alyeska sent Valdez Fisheries a letter stating that Alyeska

had  chosen  to pursue other avenues to accomplish our  objective

and that further negotiations are unnecessary.

          Sea  Hawk  sued  Valdez Fisheries  alleging  breach  of

contract and promissory estoppel.  Valdez Fisheries answered  and

filed  a  third-party complaint against Alyeska, claiming,  among

other  things,  breach of contract and promissory estoppel.   Sea

Hawk then asserted direct claims against Alyeska.  Superior Court

Judge  John  Reese  ultimately dismissed all of Valdez  Fisheries

claims  against  Alyeska under Alaska Civil  Rule  12(b)(6),  and

granted  summary  judgment to Alyeska on Sea Hawks  claims.   The

case between Valdez Fisheries and Sea Hawk went to trial, and the

jury returned a large verdict for Sea Hawk.   Sea Hawk and Valdez

Fisheries have since settled their disputes, leaving the Sea Hawk-

Alyeska disputes and the Valdez Fisheries-Alyeska disputes.

          Valdez Fisheries appeals the Rule 12(b)(6) dismissal of

its  contract and promissory estoppel claims against Alyeska, the

denial  of  leave  to amend the third-party complaint  to  assert

newly  discovered  claims, the refusal to  sanction  Alyeska  for

improper   discovery  conduct,  and  the  limitation  of   Valdez

Fisheries damages to its out-of-pocket costs in negotiating  with

Alyeska.   Sea  Hawk appeals the summary judgment dismissing  its

claims  of  promissory estoppel, negligent misrepresentation  and

omission,  third-party  beneficiary,  and  breach  of   duty   to

negotiate  in  good faith.  Alyeska appeals the  superior  courts

denial of Alyeskas request for an enhanced attorneys fees award.

III. DISCUSSION

     A.   Standard of Review

          A.   We review the dismissal of Valdez Fisheries claims for

failure to state a claim de novo.4  We only consider the material

contained  in the pleadings of Valdez Fisheries,5 construing  the

third-party complaint against Alyeska in the light most favorable

to  Valdez Fisheries, and presume the pleadings allegations to be

true.6   We will affirm the dismissal of Valdez Fisheries  third-

party  complaint for failure to state a claim only if it  appears

beyond  doubt  that Valdez Fisheries can prove no  set  of  facts

which would entitle them to relief.7

          We  review the dismissal of Sea Hawks claim on  summary

judgment de novo.8  A summary judgment movant must establish that

there  are  no  genuine issues of material fact and  that  it  is

entitled to judgment as a matter of law.9  We draw all reasonable

inferences in favor of Sea Hawk  the nonmoving party.10

     B.   It Was Not Error To Dismiss Valdez Fisheries Contract Claim
          Under Civil Rule 12(b)(6).
          
          The superior court granted Alyeskas Civil Rule 12(b)(6)

motion  and  dismissed Valdez Fisheries contract  claim,  holding

that  no contract was formed.  Valdez Fisheries argues that  this

was  error  because  its  third-party complaint  against  Alyeska

alleged  an  agreement with terms that are sufficiently  definite

and certain for contract formation.

          Rule  12(b)(6)  dismissal  is  appropriate  where   the

complaint,  given  the  benefit  of  all  reasonable  inferences,

presents no set of facts justifying recovery.11  A valid contract

requires  unequivocal acceptance by the offeree.12  We  therefore

look  to  see  whether  Valdez  Fisheries  third-party  complaint

directly or inferentially contains any factual allegations  which

could be considered an unequivocal expression of acceptance.

          The  pertinent  allegations are found in  the  text  of

Alyeskas May 6, 1994 winning bid letter, set out verbatim in  the

third-party  complaint.13  The letters second paragraph  contains

the  language most strongly supporting Valdez Fisheries  contract

claim.   It states, you have been selected as the winning bidder.

          But this language does not unequivocally express acceptance

because   it   is   susceptible  to  at  least  two   alternative

interpretations.  These words could mean either  we  accept  your

bid as written, or we have chosen you as the contractor with whom

we  will  negotiate.  The remainder of the letter fully  resolves

this ambiguity.  The letters next paragraph, also set out in  the

third-party  complaint,  states that [w]e  intend  to  begin  the

process  of  negotiating a contract as soon  as  possible.   This

passage  requires a conclusion that Alyeska was not communicating

an unequivocal acceptance of a Valdez Fisheries offer.

          Moreover,  Valdez  Fisheries proposal  contained  three

alternative  lease  proposals  that differed  significantly  with

respect to the duration and monthly rent for any lease.  Even  if

we were to interpret Alyeskas letter to say unequivocally that we

accept your offer, we could not say which of the three offers  it

was  accepting,  and whether Alyeska was agreeing  to  lease  the

property for five years, seven years, or ten years, with  monthly

rent  payments  of  $43,000, $40,000, or  $35,000,  respectively.

Duration  and price are important contract terms.14   Such  great

differences  in  important  contract  terms  preclude  finding  a

meeting   of  minds.15   The  significant  differences   in   the

alternatives confirm that the May 6 letter was not an unequivocal

acceptance but, at most, was an agreement to negotiate.16

          Valdez   Fisheries  argues  that  an  internal  Alyeska

document   a May 1994 Authorization for Expenditure  obtained  in

discovery  after  the contract claim was dismissed  resolves  the

ambiguity  and  substantiates  Alyeskas  intent  to  accept   one

particular   offer.    Valdez  Fisheries   theorizes   that   the

Authorization  for  Expenditure set out the  material  price  and

duration  terms  by  choosing  the  five-year,  $43,000   payment

alternative,  thus  removing any uncertainty about  the  contract

terms.   But  Alyeska  did  not  send  this  document  to  Valdez

Fisheries  in 1994.  Indeed, Valdez Fisheries asserts  on  appeal

that  Alyeskas  execution of the [Authorization] was  unknown  to

          Valdez Fisheries until 1997.  Therefore, this internal memorandum

could   not  have  communicated  to  Valdez  Fisheries   Alyeskas

acceptance  of  one  of the offers and it  could  not  have  made

certain terms that were otherwise unenforceably uncertain.17

          Finally,  Valdez Fisheries complaint does not permit  a

reasonable  inference  that other facts  not  specifically  plead

might  demonstrate unequivocal acceptance.  We could  hypothesize

that  Alyeska might have communicated acceptance via  some  other

unspecified  document sent in the period between the winning  bid

letter  and the termination of contract negotiations.18  In  this

case, however, the superior court was not required to make such a

strained inference to salvage Valdez Fisheries complaint.19

          We cannot hold parties to a standard that requires them

to  effectively  plead evidence prior to conducting  discovery.20

But  even  without discovery, Valdez Fisheries  should  have  had

access to any documents that might have supported its claim  that

Alyeska  accepted an offer.   As explained above,  documents  not

transmitted   to  Valdez  Fisheries  before  Alyeska   terminated

contract   negotiations   could   not   demonstrate   unequivocal

acceptance.21

          Further,  to  the  extent that Valdez Fisheries  argues

that dismissal of its contract claim was premature because it was

entered  prior  to  discovery, this  argument  must  be  rejected

because subsequent litigation allowed Valdez Fisheries to correct

any  pleading deficiency and avoid any prejudice.   Although  the

court  dismissed  the contract claim in 1995, it  did  not  enter

final  judgment  for Alyeska until July 1997.   In  the  interim,

Valdez  Fisheries engaged in extensive discovery on its remaining

claims,   including  its  promissory  estoppel  and   promise-to-

negotiate  claims.   Because these claims depended  upon  similar

facts,  Valdez  Fisheries effectively remained free  to  continue

discovery that might have helped it revive its dismissed contract

claim.

          Valdez  Fisheries  indeed  discovered  facts  which  it

          relied upon in 1997 when it sought to revive its contract claim

in  its  proposed second amended third-party complaint.  But  the

second  amended  third-party complaint and the supporting  motion

papers  submitted after eighteen additional months  of  discovery

and  investigation  failed  to  point  to  any  Alyeska  document

transmitted  in 1994 to Valdez Fisheries, other than the  winning

bid   letter  discussed  above,  that  arguably  constituted   an

unequivocal acceptance of one of Valdez Fisheries three offers.22

Thus, even assuming the Rule 12(b)(6) dismissal was premature, it

did  not prejudice Valdez Fisheries.  Valdez Fisheries had  ample

opportunity  before  final judgment to amend  and  reinstate  its

contract  claim  if it discovered relevant facts supporting  that

claim.

          While  the [Rule 12(b)(6)] threshold may be low, it  is

real   and  it  is the plaintiffs burden to take the  step  which

brings his case safely into the next phase of litigation.23   The

facts  alleged in the original and the second amended third-party

complaints  do not permit an inference of unequivocal acceptance.

Because there was no acceptance, there is no contract upon  which

Valdez  Fisheries  can  sue.   On  the  face  of  the  pleadings,

therefore, Valdez Fisheries contract claim was fatally flawed.

          Accordingly, we affirm the superior courts dismissal of

Valdez   Fisheries  contract  claim  and  Sea  Hawks  third-party

beneficiary claims.24

     C.   As a Matter of Law, the Agreement to Negotiate Fails for
          Lack of Specificity.
          
          A.   Valdez Fisheries asserts that even if Alyeskas May 6 letter

was  not  an  acceptance  of the bid  offer,  it  was  a  binding

agreement to negotiate.  We will enforce agreements to negotiate.25

Participation in negotiations, however, does not necessarily mean

that  the  parties  will be able to agree on  mutually-acceptable

terms,26  and we will therefore enforce an agreement to negotiate

only  if  it  contains  a more specific way  to  resolve  .  .  .

differences, such that we are able to discern when the  agreement

to negotiate has been breached.27  That standard is not met here.

          At best, the proposal and Alyeskas reply letter are evidence of

an  agreement to negotiate that fails to spell out  a  method  by

which  differences are to be resolved.  We therefore  affirm  the

superior  courts  dismissal  of  Valdez  Fisheries  agreement-to-

negotiate claim.

          Even  if  the  agreement-to-negotiate  claim  were   to

proceed, Valdez Fisheries would only be entitled to recover costs

associated with the negotiations themselves.  Since an  agreement

to  negotiate  is not an agreement to agree,28 any  costs  Valdez

Fisheries  incurred  in  anticipation  of  performance  were  not

incurred  in  reasonable reliance on the agreement to  negotiate.

Further,  any  costs incurred in preparing the bid were  incurred

before  Alyeska  agreed  to negotiate.  They  are  therefore  not

recoverable under this theory.

          Sea  Hawk  also  argues that it  has  a  claim  against

Alyeska  for  breach of the duty to negotiate.   Like  Sea  Hawks

third-party beneficiary claim against Alyeska, this claim depends

upon  Valdez  Fisheries claim because Alyeska never entered  into

any  agreement  to  negotiate  with  Sea  Hawk.   Therefore,  our

rejection of Valdez Fisheries duty-to-negotiate claim requires us

to affirm the dismissal of Sea Hawks duty-to-negotiate claim.

     D.   The  Superior  Court Did Not Err in  Dismissing  Valdez
          Fisheries Promissory Estoppel Claims.
          
          Valdez Fisheries makes two separate promissory estoppel

arguments.   First, it argues that Alyeskas congratulations,  you

are  the winning bidder letter constituted a promise; second,  it

argues  that Alyeska orally promised that if it accepted  [Valdez

Fisheries]  proposal, it would lease the Sea Hawk  facility  from

[Valdez  Fisheries].   Under Alaska law, a promise  that  induces

action  will  bind  the promisor only if it  satisfies  all  four

elements of promissory estoppel:

          (1)   The   action  induced  amounts   to   a
          substantial change of position;  (2)  it  was
          either   actually  foreseen   or   reasonably
          foreseeable  by the promisor; (3)  an  actual
          promise  was  made  and  itself  induced  the
          action  or  forbearance in reliance  thereon;
          and  (4)  enforcement  is  necessary  in  the
          interest of justice.[29]
          
We address each alleged promise separately.

          1.   The alleged written promise contained in Alyeskas May 6

               letter

          When a promissory estoppel claim is made in conjunction

with  a  breach of contract claim, the actual promise element  of

promissory  estoppel is analytically identical to the  acceptance

required   for  a  contract.30   Were  it  otherwise,  promissory

estoppel, which is intended to enable courts to enforce contract-

like   promises  made  unenforceable  by  technical  defects   or

defenses,31 would become a device by which parties could be  held

to  contracts  they  did not accept.  As we  have  already  held,

Alyeskas  May  6 letter did not accept an offer to contract.   It

therefore was not an actual promise, and thus fails as  a  matter

of  law  to  satisfy  the  actual promise element  of  promissory

estoppel.

          The letter is also deficient as a promise to negotiate.

Regarding  negotiations, the letter states only that [w]e  intend

to  begin  the  process  of negotiating a  contract  as  soon  as

possible.  This is a statement of present intent, not a promise.32

This statement therefore also fails as a matter of law to satisfy

the actual promise element of promissory estoppel.

          Moreover, even treating this statement as a promise, it

would  not  be  sufficiently definite to allow  enforcement.   At

best, it is a promise to begin negotiations.  It appears from the

third-party  complaint  that  negotiations  were  begun.   To  be

enforceable, a promise to negotiate must spell out the method  by

which  a  court  will determine whether or not  the  promise  was

breached.33  Although Davis v. Dykman34 considered only a contract

to   negotiate,  not  promissory  estoppel,  its   reasoning   is

instructive here.  Since the third-party complaint does not plead

facts which, if accepted as true, establish a breached promise to

negotiate,  we  affirm the superior courts  dismissal  of  Valdez

Fisheries  promissory estoppel claims based  on  Alyeskas  May  6

          letter.

          2.   McHales alleged promise

          1.   Valdez Fisheries third-party complaint alleged that Alyeskas

McHale  promised in a January 1994 conversation with David  Cobb,

Valdez  Fisheries  business manager,  that  if  Alyeska  approved

[Valdez    Fisheries]   proposal   as   best   meeting   Alyeskas

requirements,  Alyeska  would lease  the  facility  from  [Valdez

Fisheries].35    Alaskas  statute  of  frauds   renders   certain

agreement[s],  promise[s], or undertaking[s] . . .  unenforceable

unless  [they are] in writing . . . .36  The alleged oral promise

at  issue here falls under the statute of frauds because it is an

agreement for leasing for a longer period than one year . . .  or

of any interest in real property . . . .37

          The  Restatement  (Second) of Contracts  provides  that

promissory  estoppel  can  bind  a promisor  notwithstanding  the

statute  of  frauds.38  In Alaska Democratic Party  v.  Rice,  we

endorsed  this view as to employment contracts.39  We  explicitly

limited   this  holding  to  employment  contracts,  perhaps   in

recognition  of  the frequency of oral employment agreements  and

the  extent to which the main terms of an employment contract are

generally  well  understood.40   The  present  case  is  markedly

different  because  the  duration  of  the  alleged  promise   is

indiscernible.

          The statute of frauds serves many purposes.  First,  it

provides certain, consistent, and predictable principles to guide

negotiators.41  It recognizes the inherent evidentiary  worth  of

written  evidence, and the potential injustice created by relying

on  the  memories  of  interested parties to  provide  the  exact

language  of  an  agreement, which is necessary  to  discern  the

limits of the promise.42  It also recognizes the natural tendency

of peoples memories to contour the words they recall to fit their

understanding  of  the  agreement.43   The  statute   of   frauds

encourages people to commit their agreements to writing, and  the

process  of  putting the agreement in writing helps impress  upon

          them the importance of their agreements.44  It reduces litigation

over alleged oral contracts.45  Finally, a limited application of

exceptions  to  the statute of frauds preserves  the  legislative

intent  behind  the statute, and gives effect to the  legislative

judgment that the benefits conferred by the statute outweigh  the

potential injustice produced by its application.46

          The  facts  here implicate the concerns motivating  the

statute  of  frauds.   We  therefore  decline  to  extend  Alaska

Democratic  Party to cases involving the sale or  lease  of  real

estate, in which the purported oral agreement is ambiguous as  to

key terms.  In such circumstances, promissory estoppel cannot  be

used  to  defeat the statute of frauds requirement that a writing

memorialize  the  parties  agreement.  We  therefore  affirm  the

superior courts dismissal of Valdez Fisheries promissory estoppel

claims as to the oral promise.

     E.   The  Superior Court Did Not Err in Dismissing Sea Hawks
          Promissory Estoppel Claims on Summary Judgment.
          
          Sea  Hawk  argues  that  the superior  court  erred  by

failing to apply promissory estoppel to negate the effect of  the

statute  of  frauds.   It  reasons  that  dismissing  Sea   Hawks

promissory  estoppel claim is inconsistent with  our  holding  in

Alaska   Democratic   Party  that  a   promise   is   enforceable

notwithstanding  the  statute of frauds if  it  meets  the  other

elements of a promissory estoppel claim.

          The superior court granted Alyeska summary judgment  on

Sea  Hawks  promissory estoppel claims.  Sea  Hawk  alleges  that

McHale specifically promised . . . that [Valdez Fisheries]  would

get  the  Alyeska contract . . . if Sea Hawk sold  its  plant  to

[Valdez  Fisheries].  Sea Hawk also alleges that Alyeska promised

that  if for any reason Alyeska did not lease the Sea Hawk  plant

from  [Valdez Fisheries], Alyeska would lease the Sea Hawk  plant

directly from Sea Hawk on the same terms and conditions.  Thus we

have  alleged  promises  for  the  lease  of  real  estate,  with

substantial ambiguity as to terms.

          The  first  alleged promise, that Alyeska  would  lease

          from Valdez Fisheries, is ambiguous as to the duration and price.

It  appears  to  report present intentions  rather  than  promise

future  actions, and as such it is unenforceable.47  This reading

is  supported  by the second alleged promise, made  in  the  same

conversation, which clearly anticipates Alyeskas refusal to lease

from  Valdez Fisheries.  The second promise is also ambiguous  as

to  the  duration  and price of the lease, and  presumes  that  a

complete, unambiguous agreement would be reached between  Alyeska

and  Valdez Fisheries, and that Sea Hawk could simply  step  into

Valdez Fisheries shoes.

          Moreover,  the promises alleged by Sea Hawk were  oral,

and  implicate  the same statue of frauds concerns  as  the  oral

promises  made  to  Valdez Fisheries.  We  hold  that  promissory

estoppel  cannot  be  used  to  defeat  the  statute  of   frauds

requirement  that  an  agreement for a lease  with  a  term  that

exceeds one year must be in writing where, as here, the purported

oral  agreement contains substantial ambiguity as to  key  terms.

We therefore affirm the superior courts grant of summary judgment

on Sea Hawks promissory estoppel claims.

     F.   The Superior Court Permissibly Declined to Sanction Alyeska
          for Its Conduct in Discovery.
          
          Valdez  Fisheries  contends that it was  error  not  to

sanction  Alyeska  for  failing to produce  crucial  smoking  gun

documents until less than a month before trial.  Valdez Fisheries

argues  that  Alyeskas internal Authorization for Expenditure  is

particularly  significant.  The Authorization for Expenditure  is

an   internal  Alyeska  request  for  funding  for  the  wildlife

rehabilitation center.  It summarizes the project, gives  reasons

for the project, and lists the project costs as $2,580,000 for  a

five-year  lease  with  a  renewal  option.   McHale  signed  the

Authorization for Expenditure, although the signature  lines  for

the  approving  president and vice-president are  blank.   Valdez

Fisheries  argues  that the Authorization for Expenditure  proves

which  of  the  three  leasing options Alyeska  chose,  and  thus

removes any uncertainty about the contract terms.

          The   superior  court  declined  to  sanction  Alyeska,

holding  that  the information contained in the document  is  not

new,  doesnt seem to be critical, does not support the claim  for

relief  against  Alyeska  and there  was  no  improper  discovery

conduct.  We review discovery sanctions for abuse of discretion48

and findings of fact for clear error.

          Valdez  Fisheries  argument that the Authorization  for

Expenditure  is  a  smoking gun depends on  its  theory  that  it

provides  the missing terms of the lease agreement.  As a  matter

of  law, the document is not itself an acceptance because it  was

never  communicated  to Valdez Fisheries   the  offeror.   Valdez

Fisheries  argues that the document manifests Alyeskas intent  as

to  terms.   But  the  specific terms  considered  internally  by

Alyeska are irrelevant absent an acceptance.

          Valdez Fisheries has not demonstrated that the superior

court  erred in concluding that the information provided  by  the

newly   produced   evidence,  including  the  Authorization   for

Expenditure,  was  not critical and did not  support  the  claims

against  Alyeska.   We  conclude  that  it  did  not  abuse   its

discretion by declining to impose sanctions.  We therefore affirm

the oral order declining to sanction Alyeska.

     G.   The Superior Court Did Not Improperly Deny Leave to Amend
          Valdez Fisheries Third-Party Complaint.
          
          Valdez   Fisheries  moved  to  amend  its   third-party

complaint against Alyeska, arguing that various internal  Alyeska

documents   supplied  the  contract  terms,  and   that   Alyeska

misrepresented  the  status of the project.  The  superior  court

found that the proposed amendment would assert new claims for the

tort of misrepresentation and for punitive damages, but that  the

facts  giving  rise to these claims were largely coexistent  with

the  facts giving rise to Valdez Fisheries prior claims, and that

there  was  no  adequate  reason why  Valdez  Fisheries  had  not

previously  asserted the proposed new claims.  Noting that  trial

was  to  begin  in seven weeks, it also found that the  resulting

cost  and  preparation time would unduly prejudice  Alyeska.   It

therefore  denied  the motion to amend.  Valdez Fisheries  argues

that it was error not to grant its motion.

          We  review  the denial of leave to amend for  abuse  of

discretion.49  We will reverse the superior courts order only  if

we  are left with a definite and firm conviction that it erred in

its ruling.50

           Alaska Civil Rule 15(a) provides that leave [to amend]

shall be freely given when justice so requires. Leave to amend is

liberally  granted in Alaska.51  But the superior  court  retains

discretion  to  deny leave to amend on the  eve  of  trial  in  a

situation like this.52

          This  was  Valdez Fisheries third attempt to amend  its

claims  against Alyeska.  Valdez Fisheries argues that the claims

were  newly  discovered, but the superior court found  that  they

were  based  on  facts already known to Valdez  Fisheries.   This

finding  was  not  clearly erroneous.  Although Valdez  Fisheries

discovered  new details during depositions it took in  1997,  and

requested  and  received documents from Alyeska concerning  these

details,  the  main thrust of the information was  not  new.   We

therefore affirm the superior courts denial of leave to amend the

third-party complaint.

          Because  we have affirmed the superior courts holdings,

          Valdez Fisheries has no remaining claims against Alyeska.  It is

therefore  unnecessary for us to reach the question  whether  the

superior court erred in limiting Valdez Fisheries damages to  its

costs associated with negotiations.

     H.   The  Superior Court Did Not Err in Dismissing Sea Hawks
          Negligent Misrepresentation and Omission Claim.
          
          Sea  Hawk argues that it was error to dismiss its claim

that  Alyeska misrepresented its intentions to lease the Sea Hawk

facility.   Sea  Hawk alleges that in January  1994  McHale  made

promises  to  Sea  Hawk  although he knew that  Alyeska  harbored

internal misgivings about the project.  Holding that there was no

duty  to  disclose, the superior court dismissed  this  claim  on

summary judgment.

          The   four   elements   of  the   tort   of   negligent

misrepresentation are:

          First,    the    party   accused    of    the
          misrepresentation   must   have   made    the
          statement  in  the course  of  his  [or  her]
          business, profession or employment, or in any
          other  transaction  in  which  [s/]he  has  a
          pecuniary     interest.      Second,      the
          representation must supply false information.
          Third,  there must be justifi[]able  reliance
          on  the false information supplied.  Finally,
          the   accused  party  must  have  failed   to
          exercise  reasonable care  or  competence  in
          obtaining      or      communicating      the
          information.[53]
          
          We   do   not  see  how  McHale  and  Cesarinis  casual

conversations  in January 1994, some four months  before  Alyeska

sent  its  May 6 winning bid letter to Valdez Fisheries proposal,

could have created an ongoing duty to advise Sea Hawk of Alyeskas

June  1994  misgivings.  Sea Hawk has not demonstrated a  genuine

dispute  about  whether McHales alleged January  1994  assurances

were  false  when made.  A statement made as to future intentions

and actions is not a misrepresentation if it is accurate when  it

is made, even if future events render it inaccurate.54

          Sea  Hawk  argues  that  once Alyeska  represented  its

intentions  in January, it had a duty to alert Sea  Hawk  if  its

          intentions changed.  Such a holding would stretch the negligent

misrepresentation doctrine in Alaska.  We have held that [a] duty

to  disclose  is rarely imposed where the parties  deal  at  arms

length  . . . .55  The dealings between Alyeska and Sea Hawk,  as

evidenced by the infrequency of their conversations, were at arms

length.   Sea  Hawk  has  consequently not  demonstrated  that  a

reasonable  jury  could find that Sea Hawks alleged  reliance  on

these  four-month-old  assurances was reasonable.   There  is  no

issue of fact about whether Alyeska misled Sea Hawk after Alyeska

allegedly  changed  its  intentions, because  Sea  Hawk  had  not

claimed  that  it  made post-change attempts to  obtain  Alyeskas

confirmation  of McHales alleged January representations  to  Sea

Hawk.

          Because  we find that the evidence in the record  would

support a limited duty at best, and because Sea Hawks actions  in

reliance  were  not reasonable given the limited nature  of  this

duty,  we  affirm  the  superior courts dismissal  of  Sea  Hawks

negligent   misrepresentation  and  omission  claim  on   summary

judgment.

     I.   It Was Not an Abuse of Discretion to Deny Alyeskas Request
          for Attorneys Fees Exceeding the Usual Twenty Percent.
          
          Alyeska argues on cross-appeal that the superior  court

erred  by  awarding Alyeska twenty percent of  the  fees  it  had

incurred,56 rather than enhanced fees under a percentage exceeding

twenty percent.57  We will not reverse an award of costs and fees

absent  a clear abuse of discretion.58  We will not find a  clear

abuse  of  discretion unless the award is arbitrary,  capricious,

manifestly  unreasonable,  or  the  result  of  an  impermissible

motive.59  An award that tracks the scheduled fee award of Alaska

Civil Rule 82 is presumptively valid.60

          Alyeska  has  not  demonstrated  that  awarding  twenty

percent  of  its  fees was arbitrary, capricious,  or  manifestly

unreasonable.   Alyeskas  arguments demonstrate,  at  best,  that

reasonable  minds  could disagree about the  appropriate  amount.

The  record reveals vigorous litigation which the superior  court

          did not find to be vexatious.  Alyeska has not shown that the

record  compels  a finding that Valdez Fisheries  and  Sea  Hawks

actions  were excessively litigious or vexatious, and  has  hence

failed  to demonstrate a clear abuse of discretion.  We therefore

affirm the superior courts award of attorneys fees.

IV.  CONCLUSION

          For these reasons we AFFIRM in all respects.

BRYNER, Justice, dissenting.

          I  disagree  with  the  courts conclusion  that  Valdez

Fisheries  third-party  complaint against  Alyeska  was  properly

dismissed under Alaska Rule of Civil Procedure 12(b)(6).

          Civil  Rule  12(b)(6) permits the court  to  dismiss  a

complaint  that  fails  to  state  a  viable  claim.1   We   have

frequently held that motions to dismiss are disfavored2 and  have

urged that complaints be give[n] . . . the benefit of the doubt.3

In  determining  whether a claim is sufficiently  stated,  courts

must  read  the  complaint in the light  most  favorable  to  the

claimant  and  deem  all alleged facts and reasonable  inferences

arising  therefrom  as if they were true.4  A complaint  that  is

merely vague or lacks detail is not fatally flawed;5 instead,  it

suffices  if  the allegations provide for relief on any  possible

theory.6   Hence, a complaint will withstand challenge under Rule

12(b)(6)  as  long  as  it  set[s]  forth  allegations  of   fact

consistent  with  and  appropriate to some enforceable  cause  of

action and provides a framework for future evidence demonstrating

entitlement to the requested  relief.7  A complaint should not be

dismissed  unless it appears beyond doubt that the plaintiff  can

prove no set of facts in support of his claim which would entitle

him  to  relief  8 or unless the complaint itself rules  out  the

possibility that a valid claim exists.9

          In  applying these principles to a given case, we  must

also  bear in mind Alaskas traditionally lenient notice  pleading

standards.  Civil Rule 8 simply requires that a complaint include

(1)  a  short and plain statement of the claim showing  that  the

pleader is entitled to relief, and (2) a demand for judgment  for

the  relief  the pleader seeks.10  The rule further advises  that

[e]ach  averment  of  a  pleading shall be  simple,  concise  and

direct.    No   technical  forms  of  pleading  or  motions   are

required.11   We have not construed this rule to require  details

of  evidence that a claimant will offer to establish a claim;  to

the contrary, we have emphasized that the rule is satisfied by  a

          brief statement that give[s] the defendant fair notice of the

claim and the grounds upon which it rests.12

          Disregarding  these  well-established  principles,  the

court  holds  Valdez Fisheries breach-of-contract claim  facially

deficient  for neglecting to affirmatively plead  specific  facts

that  unequivocally establish the elements of a valid contract.13

More  particularly,  because it notes  that  [a]  valid  contract

requires  unequivocal  acceptance  by  the  offeree,   the  court

demands  that Valdez Fisheries third-party complaint directly  or

inferentially [must] contain[ ] . . . factual allegations  [that]

could  be  considered an unequivocal expression of  acceptance.14

By   effectively  requiring  that  Valdez  Fisheries  third-party

complaint  be  dismissed  for failing to particularly  plead  all

facts  justifying recovery, the courts ruling inverts  the  usual

principle that condones dismissal under Rule 12(b)(6) only  where

the  complaint  .  .  .  presents  no  set  of  facts  justifying

recovery.  15        The courts ruling also conflicts with  Civil

Rule  8s  lenient  notice  pleading requirement.   Great  Western

Savings Bank v. George W. Easley Co., J.V.16 usefully illustrates

the conflict.  There Great Western appealed an award in favor  of

Easley  for  breach of contract, arguing that the contract  claim

should  have  been  kept from the jury because Easleys  complaint

failed  to  allege  a  necessary element  for  a  valid  contract

consideration.17  We rejected that argument, unequivocally ruling

that  Civil  Rule 8 does not require a complaint to affirmatively

plead contract elements:

          Alaska   is  a  notice  pleading  state.

          Alaska R. Civ. P. 8(a). The rules merely

          require  a short and plain statement  of

          the  claim  that will give the defendant

          fair notice of what the plaintiffs claim

          is  and the grounds upon which it rests.

          Easley Companys second amended complaint

          alleged   that  Great  Western   had   a

          contractual  obligation to  make  direct

          payments to Easley Company.  It  further

          alleged that Great Western breached this

          contract   and   that   Easley   Company

          suffered   damages.    Easley   Companys

          complaint sufficiently put Great Western

          on  notice of the claims against it  and

          of  the  grounds upon which they rested.

          There    was    no   need   to    allege

          consideration.    The   second   amended

          complaint satisfied the requirements  of

          Civil Rule 8(a).[18]

Great Western thus allows breach-of-contract claims to go forward

without specifically pleading the elements of contract formation,

making  it  clear that a complaint gives the defendant sufficient

notice  if it generally alleges that a contract existed  and  was

breached in a way that damaged the plaintiff.19

          In  demanding that a complaint specifically  plead  all

contract  elements, then, the courts opinion  today  ignores  the

plain  language  of Civil Rule 8 and overturns settled  precedent

that  interprets  Rule  8  to eschew particularized  pleading  of

contract elements.  Furthermore, the opinion implicitly conflicts

with  Alaska  Civil  Rule  9, which does  require  particularized

pleading for certain special matters, but conspicuously does  not

extend   its  particularized  pleading  requirement  to  contract

elements.20  Indeed, Rule 9(c) effectively requires defendants to

plead  the  absence of contract elements, stating that  claimants

need  only  aver  the  performance or  occurrence  of  conditions

precedent generally, while explicitly assigning to defendants the

duty  to  plead denial of performance or occurrence of conditions

precedent specifically and with particularity.21

          In  the present cases, paragraph 59 of Valdez Fisheries

third-party complaint alleges that

          [a]  valid and enforceable contract was  made
          between   Alyeska   and  [Valdez   Fisheries]
          pursuant  to which [Valdez Fisheries]  agreed
          to  acquire and modify the Sea Hawk  Facility
          in  Valdez  according to certain  and  stated
          specifications  and Alyeska agreed  to  lease
          the modified facility from [Valdez Fisheries]
          on certain and stated terms.
          
Under  Civil  Rule 8s notice pleading standards,  this  paragraph

alone  pleads the existence of a contract with sufficient clarity

to  place Valdez Fisheries contract claim beyond reach of a  Rule

12(b)(6)  motion.  To my knowledge, this court has  never  before

ruled  that a complaint for breach of contract must, in  addition

to   pleading   that  a  contract  existed  and   was   breached,

affirmatively  recite all necessary contract  elements;  nor  has

this  court  previously suggested that the element of  acceptance

must  be described by specific  factual allegations [that]  could

be  considered  an  unequivocal expression of acceptance.22   The

courts  newly adopted specific-pleading requirement  is  a  sharp

break  from  our  settled law and will  surely  come  as  a  rude

surprise  to many Alaska lawyers who have drafted, and  currently

have  pending, contract complaints that rely on Alaskas  hitherto

flexible and common-sense pleading requirements.

          But  even under todays newly declared specific-pleading

standard,  I  think  that Valdez Fisheries third-party  complaint

states  a  facially viable claim for breach of contract.   In  my

view,  the  court  mischaracterizes the  winning  bid  letter  as

containing the complaints only pertinent allegations of  Alyeskas

acceptance.   Paragraph  48 of the third-party  complaint  quotes

Alyeskas  winning bid letter, prefacing the quotation  by  simply

describing  it  as  a  response to Valdez Fisheries  earlier  bid

submittals.  The prefatory language says nothing else: it neither

explicitly  nor implicitly purports to characterize the  May  26,

1994,  letter  as Alyeskas unequivocal acceptance  let  alone  as

Valdez Fisheries sole evidence of acceptance.

          In   the   next   paragraph,  though,  the  third-party
complaint  does specifically allege an acceptance  an event  that
this  paragraph implicitly alleges occurred on June  3,  1994,  a
          full month after Alyeskas winning bid letter:
               On  June  3,  1994,  representatives  of
          Alyeska   and  [Valdez  Fisheries]   met   at
          Alyeskas  offices in Anchorage, Alaska.   The
          matters  discussed at this  meeting  included
          the  planning and scheduling of  the  project
          and the contract structure.  At this meeting,
          the   attorneys  for  Alyeska   and   [Valdez
          Fisheries]  discussed the  preparation  of  a
          document  incorporating the  terms  that  had
          been  proposed  by  [Valdez  Fisheries]   and
          accepted by Alyeska.  The attorney[]s  agreed
          that  the  appropriate document  would  be  a
          lease  agreement.   [Valdez Fisheries]  asked
          Alyeska  if  Alyeska had a boilerplate  lease
          agreement  that the parties could  use  as  a
          framework for the agreement.  Alyeska replied
          that   it  did  not  have  such  a  document,
          whereupon   [Valdez  Fisheries]   agreed   to
          provide   a   boilerplate   draft   of    the
          document.[23]
          Two  paragraphs later, in paragraph 51,  the  complaint
alleges that Valdez Fisheries sent Alyeska a boilerplate draft to
serve  as  the  contracts framework.  In its  ensuing  paragraphs
paragraphs  52-54   the complaint describes  Alyeskas  subsequent
acts  reneging  on its contractual commitment.   And  as  already
noted  above, the complaint then proceeds to repeat its  specific
allegation  of  acceptance  in paragraph  59  by  realleging  the
existence  of [a] valid and enforceable contract .  .  .  between
Alyeska  and [Valdez Fisheries] pursuant to which . .  .  Alyeska
agreed to lease the modified facility from [Valdez Fisheries]  on
certain  and  stated terms.  Like the language of  paragraph  49,
this  language pleads an unequivocal acceptance; and  nothing  in
this language purports to confine its allegation of acceptance to
the  winning  bid  letters language or to  negate  paragraph  50s
allegation that an acceptance occurred at or around the  time  of
          the June 3 meeting.
          Of  course  I  recognize that a  complaint  can  become
vulnerable  to  dismissal under Rule 12(b)(6) if it affirmatively
pleads too much and establishes a fatal flaw  some specific  fact
whose existence categorically precludes recovery and demonstrates
that  there is some insuperable bar to relief.24  But my  reading
of  the  entire third-party complaint in the light most favorable
to  Valdez Fisheries (the reading that we must adopt for purposes
of evaluating the propriety of a Rule 12(b)(6) dismissal)25 fails
to  reveal  any  such  affirmatively stated fatal  flaw.   Valdez
Fisheries undeniably does quote Alyeskas winning bid letter;   so
too,  it relies on the letter as part of its claim for breach  of
contract damages; but the third-party complaint nowhere touts the
winning  bid letter as an unequivocal acceptance per se,  and  it
never  implicitly or explicitly disclaims the existence of  other
evidence that would prove Alyeskas unequivocal acceptance.
          To  the  extent  that  the courts  opinion  gleans  any
insuperable  bar  from  the  complaint inferentially,  the  court
necessarily  violates the interpretive rule that requires  it  to
give Valdez Fisheries the benefit of all reasonable inferences in
determining  whether  its  complaint  passes  muster  under  Rule
12(b)(6).26   When read in its entirety and taken as true,  then,
the  third-party  complaint  meets even  the  newly  imposed  and
unjustifiably stringent demand for allegations that  directly  or
inferentially  could be considered an unequivocal  expression  of
acceptance.27
          Yet  the  courts opinion nonetheless refuses to discuss
or  even  to  acknowledge  any allegation of  acceptance  in  the
complaint  other than Alyeskas winning bid letter.   The  opinion
rests its refusal to consider anything but the winning bid letter
on  two  related legal assumptions:  The opinion assumes that  an
unequivocal  acceptance could not occur unless  Valdez  Fisheries
alleged that Alyeska specifically agreed to accept one of  Valdez
Fisheries  three  alternative lease proposals28  and  it  further
assumes  that the statute of frauds would bar any oral acceptance
by Alyeska.29  Yet neither assumption bears up to scrutiny.
          First,  the  opinion broadly posits that an unequivocal
acceptance  could  not  have occurred   and  therefore  no  valid
contract  could possibly have arisen  unless Alyeska specifically
accepted,  and  communicated its acceptance  of,  one  of  Valdez
Fisheries three alternative lease proposals:
          Even  if we were to interpret Alyeskas letter
          to  say  unequivocally that  we  accept  your
          offer,  we  could not say which of the  three
          offers  it was accepting, and whether Alyeska
          was  agreeing to lease the property for  five
          years,  seven  years,  or  ten  years,   with
          monthly rent payments of $43,000, $40,000, or
          $35,000,  respectively.  Duration  and  price
          are  important  contract terms.   Such  great
          differences   in  important  contract   terms
          preclude  finding a meeting  of  minds.   The
          significant  differences in the  alternatives
          confirm  that  the May 6 letter  was  not  an
          unequivocal acceptance but, at most,  was  an
          agreement to negotiate.[30]
          
The  opinion further professes that the court would be  incapable
of  determining  the legal consequences of a breach,  even  if  a
contract could somehow have arisen:  We likewise do not see how a
court  could enforce the alleged contract.  Based on the proposal
and   Alyeskas  response,  a  court  could  not  order   specific
performance or calculate damages for breach.31
          But  universally  recognized contract  law  contradicts
these assumptions.  Professor Corbin expressly describes the kind
of  agreement at issue here as a commonly accepted and  routinely
enforced alternative contract:
          An  alternative contract is one  in  which  a
          party  promises to render some one of two  or
          more  alternative performances either one  of
          which   is  mutually  agreed  upon   as   the
          bargained-for  equivalent given  in  exchange
          for  the  return  performance  by  the  other
          party.   The choice among these alternatives,
          the  power of election, is usually  given  to
          the  promisor; but it need not  be.   If  the
          option  is in the promisor, he has  power  to
          discharge  his contractual duty by performing
          either alternative. . . . The breach of  such
          a  contract consists  either in a repudiation
          of  [the promisors] contractual duty  by  the
          promisor  or  in [the promisors]  failure  to
          perform  any  and  all  of  the  alternatives
          provided in the contract.[32]
And  according  to  Corbin, [f]or such a breach  the  measure  of
damages  recoverable  by  the  promisee  is  the  value  of  that
alternative  that  is the least burdensome and expensive  to  the
promisor.33
          This  court  has expressly recognized the  validity  of
alternative  contracts  on at least two  past  occasions.34   And
there  appears  to  be no reason why the same kind  of  agreement
would  not  be enforceable in this case.  Here, Valdez  Fisheries
unequivocally  offered Alyeska the choice of  any  one  of  three
alternative  lease provisions, each one definite and  unambiguous
in  its  own right and all equally and unconditionally acceptable
to  Valdez Fisheries.  Alyeskas winning bid letter may not itself
have  been an unequivocal acceptance because it only proposed  to
negotiate  Valdez  Fisheries offer.  But if  Alyeska  later  gave
Valdez  Fisheries  an unequivocal commitment to  proceed  with  a
contract   that  allowed  Alyeska  its  choice  of  these   three
alternatives   as  paragraph  49  of  the  third-party  complaint
implicitly alleges Alyeska did at the June 3, 1994, meeting  then
Alyeska   would  have  entered  into  a  valid  and   enforceable
alternative  contract,  notwithstanding its  reservation  of  the
right  to elect alternatives.  And correspondingly, upon Alyeskas
subsequent breach, Valdez Fisheries would be entitled to  recover
damages  measured  by the shortest of the three  lease  proposals
(and,  presumably,  by  any reasonably foreseeable  consequential
damages  that Valdez Fisheries incurred as a result  of  Alyeskas
breach of that provision).35
          The  second  assumption driving the courts  refusal  to
acknowledge  any  allegation  of acceptance  in  the  third-party
complaint, other than paragraph 48s reference to the winning  bid
          letter, rests on the statute of frauds.  Referring to its
discussion  of  the  statute of frauds  in  connection  with  the
separate  estoppel claim that Valdez Fisheries bases  on  McHales
alleged  verbal  promises,  the opinion  reasons  that  any  oral
communications  [concerning the alleged Alyeska/Valdez  Fisheries
contract] would be unavailing under the statute of frauds even if
they  were  unequivocal  expressions of acceptance.36   Yet  this
assertion  lacks merit for two independent reasons: it overstates
the statute of frauds substantive requirements, and it relies  on
an   impermissible   procedural  theory   for   dismissal   under
Rule 12(b)(6).
          The  statute of frauds reflects pragmatic concerns, and
so  has been uniformly interpreted to place substance over  form.
As  Professor  Corbin emphasizes, it has not  been  construed  to
require  a  formal  or complete written contract  and  should  be
flexibly  applied on a case-by-case basis to accept  any  writing
that realistically dispels the danger of fraud:
          [W]e  should  always be satisfied  with  some
          note  or  memorandum that is  adequate,  when
          considered  with  the  admitted  facts,   the
          surrounding    circumstances,     and     all
          explanatory  and corroborative and  rebutting
          evidence, to convince the court that there is
          no  serious  possibility  of  consummating  a
          fraud by enforcement.[37]
          
Alaska  has  followed  Professor Corbins  view  of  the  statute,
holding that a writing, even if not formal or complete, satisfies
the  statute  as  long as it avoids any serious possibility  that
enforcing the contract would result in perpetrating a fraud.38
          Under  this practical view of the statute, it might  be
perfectly  sensible  to bar the promissory  estoppel  claim  that
Valdez  Fisheries  bases  exclusively on McHales  alleged  verbal
promise:  that  promise was at most an informal, non-contractual,
and  unauthorized oral assurance made even before Alyeska  issued
its  invitation  to bid; and it is evidently unsupported  by  any
reasonably  contemporary corroborating  notation.   By  contrast,
when   the  statutes  flexible  analysis  is  applied  to  Valdez
Fisheries  direct  contract claim against  Alyeska,  the  outcome
          changes dramatically: for if Alyeskas Authorization for
Expenditure is viewed in conjunction with Alyeskas invitations to
bid,  Valdez  Fisheries specific responses, Alyeskas winning  bid
letter,  the  parties subsequent correspondence relating  to  the
June  3, 1994, meeting, and the boilerplate contract that  Valdez
Fisheries then sent to Alyeska, the Authorization for Expenditure
would  easily satisfy the statute of frauds basic goal of erasing
all serious possibility of consummating a fraud by enforcement.39
And  by  so  doing, it would allow Valdez Fisheries to prove  its
claim  through  any  otherwise admissible  evidence  of  an  oral
acceptance.  The fact that Alyeskas Authorization for Expenditure
was  internally  generated and was never communicated  to  Valdez
Fisheries certainly might preclude the authorization itself  from
being  deemed a valid acceptance.  But this same fact would  have
no  bearing on the Authorizations ability to satisfy the separate
and  distinctly narrower concerns of the statute of frauds,  thus
opening the door to proof of an oral acceptance.
          And  in  any  event, because the third-party  complaint
does  not  categorically rule out the possibility  of  a  written
acceptance, Alyeska cannot properly invoke the statute of  frauds
as  a  basis  for a Rule 12(b)(6) dismissal.  As this  court  has
previously  recognized,  even though the  statute  of  frauds  is
generally considered an affirmative defense, it can sometimes  be
properly  raised by a motion to dismiss under Rule 12(b)(6)   but
only  when this defense is unequivocally established on the  face
of  the  complaint,  as, for example, when the complaint  defeats
itself  by  explicitly alleging a sale of land based on  an  oral
agreement.40   By  contrast, in any more equivocal  circumstances
  for example, even when a plaintiffs opposition to the motion to
dismiss framed its arguments as though only an oral agreement was
asserted  as the basis for relief we have specifically held  that
if  the  complaint did not clearly allege [the fact  of  an  oral
agreement,] . . . dismissal could be viewed as inappropriate  for
that reason.41  Here, then, because the third-party complaint did
not clearly allege an oral acceptance, dismissal for violation of
the  statute  of frauds could properly be granted before  summary
          judgment.
          For  these  reasons, I would hold that Valdez Fisheries
third-party complaint sets forth a facially plausible  claim  for
breach  of  contract that could not properly be  dismissed  under
Rule 12(b)(6).42  I therefore dissent from the courts decision to
affirm the superior courts order dismissing the claim.
_______________________________
     1     We  describe  the facts for purposes of these  appeals
taking  all  permissible inferences in favor of Valdez  Fisheries
and Sea Hawk Seafoods.

     2     This  is  how  Valdez Fisheries third-party  complaint
described its offer.

     3     This  is  how  Valdez Fisheries third-party  complaint
described Alyeskas response.

     4     Christiansen v. Melinda, 857 P.2d 345, 346 n.2 (Alaska
1993)  (citing Kollodge v. State, 757 P.2d 1024, 1026 n.4 (Alaska
1988)).

     5    Kollodge, 757 P.2d at 1026 (citation omitted).

     6    Id. (citation omitted).

     7     Shooshanian v. Wagner, 672 P.2d 455, 461 (Alaska 1983)
(citation omitted).

     8     Reeves  v. Alyeska Pipeline Serv. Co., 926 P.2d  1130,
1134 (Alaska 1996).

     9     Id.  (citing  Zeman v. Lufthansa German Airlines,  699
P.2d 1274, 1280 (Alaska 1985)).

     10    Reeves, 926 P.2d at 1134 (citations omitted).

     11     Cooperman v. Individual, Inc., 171 F.3d 43,  47  (1st
Cir.  1999)  (citation omitted); Gooley v. Mobil Oil  Corp.,  851
F.2d 513, 515 (1st Cir. 1988) (interpreting Federal Rule of Civil
Procedure  12(b)(6) and stating that [m]odern notions  of  notice
pleading  notwithstanding,  a plaintiff  .  .  .  is  nonetheless
required  to  set  forth factual allegations,  either  direct  or
inferential,  respecting  each  material  element  necessary   to
sustain  recovery  under some actionable legal  theory);  Charles
Alan  Wright et al., Federal Practice and Procedure  1216, 156-59
(2d  ed.  1990)  (stating complaint must contain  allegations  on
every  material point necessary to sustain a recovery .  .  .  or
contain  allegations from which an inference fairly may be  drawn
that  evidence  on  these material points will be  introduced  at
trial);  see  also  Blaw Knox Ret. Income Plan v.  White  Consol.
Indus.,  Inc.,  998 F.2d 1185, 1189-90 (3d Cir. 1993)  (affirming
Federal Rule of Civil Procedure 12(b)(6) dismissal because  ERISA
complaint   that  employer  breached  fiduciary  duty   did   not
specifically allege facts which, if true, would demonstrate  that
employer had mismanaged plans or failed to meet statutory funding
obligations); Dworkin v. First Natl Bank of Fairbanks,  444  P.2d
777,  779-80  (Alaska  1968)  (holding  that  Alaska  Civil  Rule
12(b)(6) dismissal was proper where complaint afforded no factual
basis  for  inferring  requisite elements of  equitable  mortgage
claim).

     12    Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997) (The
formation of a valid contract requires an offer encompassing  all
essential   terms,  unequivocal  acceptance   by   the   offeree,
consideration, and an intent to be bound.) (citations omitted).

     13    See Ahwinona v. State, 922 P.2d 884, 886 (Alaska 1996)
(interpreting  meaning  of  attached release  in  affirming  Rule
12(b)(6) dismissal).  Interpreting the words in a contract  is  a
question  of  law  [w]here  the  facts  relating  to  surrounding
circumstances  are  not in dispute.  State v. Fairbanks  N.  Star
Borough  Sch.  Dist., 621 P.2d 1329, 1331-32  n.5  (Alaska  1981)
(quoting Natl Bank of Alaska v. J.B.L. & K. of Alaska, Inc.,  546
P.2d 579, 586 (Alaska 1976)).

     14    See Magill v. Nelbro Packing Co., __ P.3d __ , 2001 WL
995976  at  *3-4,  Op. No. 5459 at 9 (Alaska,  August  31,  2001)
(affirming  trial  courts  conclusion  that  no  profit   sharing
agreement  had  been  formed where no  evidence  of  sufficiently
definite price term); Clark v. Greater Anchorage, Inc., 780  P.2d
1031,  1035  (Alaska 1989) (affirming denial of directed  verdict
where  agreement  to procure insurance was sufficiently  definite
and  certain  because, among other things, duration  of  coverage
could be inferred from past dealings and business customs).

     15    See Davis, 938 P.2d at 1006 (stating that an agreement
is  not  enforceable  if its essential terms are  not  reasonably
certain) (citations omitted).

     16     We likewise do not see how a court could enforce  the
alleged contract.  Based on the proposal and Alyeskas response, a
court  could not order specific performance or calculate  damages
for breach.

     17     Acceptance  requires  a reasonable  manifestation  of
assent  to  the  terms  of  the offer.  Restatement  (Second)  of
Contracts   50  (1979).   Except  in  unusual  circumstances  not
present  here, manifestation of acceptance by promise requires  a
reasonable  attempt to communicate this promise to  the  offeror.
See  Restatement  (Second)  of Contracts   56  (it  is  generally
essential  to  an  acceptance by promise . . . that  the  offeree
exercise   reasonable  diligence  to  notify   the   offeror   of
acceptance);  id.  at   69 cmt. a (offerees silence  or  inaction
generally  cannot  constitute  acceptance).   Even  assuming  the
Authorization  for Expenditure would have been an  acceptance  by
promise  had Alyeska communicated it to Valdez Fisheries, Alyeska
made  no  attempt  to do so.  The Authorization  for  Expenditure
simply  provides no basis for determining that Alyeska manifested
assent to Valdez Fisheries offer.  See Zeman, 699 P.2d at 1281-82
(stating  that  summary judgment on breach of contract  claim  is
appropriate  where  no  reasonable person  could  read  purported
acceptance as evidencing mutual assent); see also Davis, 938 P.2d
at 1006.

     18      As  discussed  infra  at  Part  III.D.2.,  any  oral
communications  would be unavailing under the statute  of  frauds
even if they were unequivocal expressions of acceptance.

     19    Gooley, 851 F.2d at 514 (noting that court[s] need not
conjure  up  unpled  allegations or contrive  elaborately  arcane
scripts to save a complaint from dismissal).

     20    Cooperman, 171 F.3d at 47 (citation omitted).

     21    Supra note 18 and accompanying text.

     22     Valdez  Fisheries argues that it did not  obtain  the
Authorization for Expenditure until several weeks after the court
denied  its  proposed  second amended  complaint.   As  discussed
above,  however,  the  Authorization for  Expenditure  could  not
support an inference that Alyeska accepted Valdez Fisheries offer
because it was never communicated to Valdez Fisheries.

     23    Gooley, 851 F.2d at 515 (citation omitted).

     24     Sea  Hawk cannot be a third-party beneficiary in  the
absence of a valid contract between Alyeska and Valdez Fisheries.

     25    See Davis, 938 P.2d at 1008-09 (In theory, an agreement
to  negotiate  is an enforceable contract in the sense  that  the
parties can be made to participate in negotiations.).

     26    Id.

     27    Id. at 1009.

     28    See id.

     29    Zeman, 699 P.2d at 1284.

     30    Brady v. State, 965 P.2d 1, 11 (Alaska 1998).

     31    Id. at 10.

     32     See  id.  (drawing  distinction  between  unequivocal
acceptance and comments about timing and capacity such  as   [w]e
can  be prepared to sign . . . make that contract . . . sign that
contract . . . on the day they sign the classification order. ).

     33    Davis v. Dykman, 938 P.2d 1002, 1009 (Alaska 1997).

     34    938 P.2d 1002, 1009 (Alaska 1997).

     35    Alyeska argues that this court cannot consider McHales
alleged  promise  because it was not set out in Valdez  Fisheries
original  third-party  complaint.   But  Valdez  Fisheries  first
amended  third-party complaint, which was partially  accepted  by
the  superior  court,  pleads the McHale promise.   The  superior
court  granted  Valdez  Fisheries motion to  amend  some  of  its
claims,   including   its  good  faith/reasonable   efforts   and
promissory  estoppel claims against Alyeska.  The McHale  promise
is part of the promissory estoppel claims.

     36    AS 09.25.010(a).

     37    AS 09.25.010(a)(6).

     38    Restatement (Second) of Contracts  139 (1981).

     39    934 P.2d 1313, 1316-17 (Alaska 1997).

     40    Id.

     41    See David J. Gass, Michigans UCC Statute of Frauds and
Promissory  Estoppel,  74  Mich. B.J. 524,  526  (1995)  (listing
general reasons given for statute of frauds in survey of cases).

     42    See id. at 527.

     43    See id.

     44    See id.

     45    See id.

     46    See id. at 527-28.

     47    See Brady, 965 P.2d at 10.

     48     Christensen v. NCH Corp., 956 P.2d 468,  473  (Alaska
1998).

     49     Betz v. Chena Hot Springs Group, 742 P.2d 1346,  1348
(Alaska 1987).

     50    Id.

     51    See, e.g., Betz, 742 P.2d at 1348.

     52     Neal  &  Co. v. City of Dillingham, 923 P.2d  89,  95
(Alaska 1996).

     53     Bubbel  v. Wien Air Alaska, Inc., 682 P.2d  374,  380
(Alaska  1984)  (quoting Restatement (Second)  of  Torts   552(1)
(1977)).

     54    Id. at 381.

     55    Matthews v. Kincaid, 746 P.2d 470, 472 (Alaska 1987).

     56    See Alaska R. Civ. P. 82(b)(2).

     57    See Alaska R. Civ. P. 82(b)(3).

     58     State  v. Alaska Intl Air, Inc., 562 P.2d 1064,  1067
(Alaska 1977).

     59     Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 44 (Alaska 1998) (citations omitted).

     60     Reid  v.  Williams, 964 P.2d 453, 460  (Alaska  1998)
(citation omitted).

1    Rule 12(b) provides:

          Every  defense, in law  or  fact,  to  a
          claim   for   relief  in  any  pleading,
          whether  a  claim, counterclaim,  cross-
          claim,  or third-party claim,  shall  be
          asserted   in  the  responsive  pleading
          thereto if one is required, except  that
          the following defenses may at the option
          of the pleader be made by motion:  . . .
          (6)  failure to state a claim upon which
          relief can be granted . . . . If,  on  a
          motion  asserting  the defense  numbered
          (6)   to  dismiss  for  failure  of  the
          pleading  to  state a claim  upon  which
          relief  can be granted, matters  outside
          the  pleading are presented to  and  not
          excluded by the court, the motion  shall
          be  treated as one for summary  judgment
          and  disposed of as provided in Rule 56,
          and   all   parties   shall   be   given
          reasonable  opportunity to  present  all
          material made pertinent to such a motion
          by Rule 56.
          
     2     E.g.,  Kollodge v. State, 757 P.2d 1024, 1026  (Alaska
1998);  Reed  v. Municipality of Anchorage, 741 P.2d  1181,  1184
(Alaska  1987); Knight v. American Guard & Alert, Inc., 714  P.2d
788, 791 (Alaska 1986).

     3    Knight, 714 P.2d at 791.

     4     Kollodge,  757 P.2d at 1026; Guerrero v. Alaska  Hous.
Fin. Corp., 6 P.3d 250, 253 (Alaska 2000).

     5     Knight, 714 P.2d at 791; see also Shannon v.  City  of
Anchorage, 429 P.2d 17, 19 (Alaska 1967).  (The complaint alleged
that  appellee was negligent in failing to fulfill  its  duty  of
furnishing Jacobs ladders for use of [plaintiff].  That  was  all
that  was  necessary  to  state  a  claim  for  relief.   It  was
unnecessary to state the evidential facts upon which such a  duty
was  founded. . . .  If appellee needed more facts, it could call
for them under Civil Rule 12(e) or obtain them by utilization  of
the rules relating to discovery.) (citations omitted).

     6     Knight, 714 P.2d at 791 (quoting 5 Charles Alan Wright
&  Arthur R. Miller, Federal Practice and Procedure  1357, at 602
(1969)).

     7     Linck  v. Barokas & Martin, 667 P.2d 171, 173  (Alaska
1983).

     8     Shooshanian v. Wagner, 672 P.2d 455, 461 (Alaska 1983)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

     9     Guerrero, 6 P.3d at 253-58 (allowing dismissal only if
it was beyond doubt that plaintiff could not factually support  a
claim for relief).

     10   Alaska R. Civ. P. 8(a).

     11   Alaska R. Civ. P. 8(e)(1).

12    Sykes  v.  Melba Creek Mining, Inc., 952  P.2d  1164,  1168
n.4  (Alaska 1998); cf. Gamble v. Northstore Pship, 907 P.2d 477,
481-83  (Alaska 1995) (stating that [a]n affirmative  defense  is
adequately pleaded if it provides the opponent fair notice of the
nature  of  the  defense  and  deeming  an  answer  that  stated,
Plaintiffs  are barred by estoppel and Plaintiffs are  barred  by
res  judicata as sufficient to raise affirmance as an affirmative
defense  because the pleaded defenses invok[ed] some of the  same
concerns in general terms).

     13   Slip Op. at 8-10.

     14   Id. at 8.

     15   The opinion expressly acknowledges this principle.  See
Slip  Op.  at 8 (quoting Cooperman v. Individual, Inc., 171  F.3d
43, 47 (1st Cir. 1999) (emphasis added)).

     16   778 P.2d 569 (Alaska 1989).

     17   Id. at 577-78.

18   Id.

     19   See id.

     20    For  example, Civil Rule 9(a) requires specificity  in
pleading  capacity,  Rule 9(b) requires specificity  in  pleading
fraud,  mistake,  and condition of mind, and Rule  9(h)  requires
specificity as to items of special damage:

               (a)   Capacity.  It is not necessary  to
          aver  the  capacity of a party to sue  or  be
          sued or the authority of a party to sue or be
          sued  in  a  representative capacity  or  the
          legal  existence of and organized association
          of  persons that is made a party,  except  to
          the  extent required to show the jurisdiction
          of  the court.  When a party desires to raise
          an  issue  as to the legal existence  of  any
          party or the capacity of any party to sue  or
          be sued or the authority of a party to sue or
          be  sued  in  a representative capacity,  the
          party desiring to raise the issue shall do so
          by  specific  negative averment, which  shall
          include  such supporting particulars  as  are
          peculiarly within the pleaders knowledge.
          
               (b)   Fraud, Mistake, Condition  of  the
          Mind.   In all averments of fraud or mistake,
          the   circumstances  constituting  fraud   or
          mistake  shall  be stated with particularity.
          Malice,   intent,   knowledge,   and    other
          condition of mind of a person may be  averred
          generally.
          
               . . . .
          
               (h)   Special  Damage.   When  items  of
          special  damage are claimed,  they  shall  be
          specifically stated.
          
     21   Civil Rule 9(c) provides:

               Conditions  Precedent.  In pleading  the
          performance   or  occurrence  of   conditions
          precedent, it is sufficient to aver generally
          that   all  conditions  precedent  have  been
          performed  or  have occurred.   A  denial  of
          performance  or  occurrence  shall  be   made
          specifically and with particularity.
          
22   Slip Op. at 8.

23   Emphasis added.

     24    5A  Charles  Alan Wright & Arthur R.  Miller,  Federal
Practice and Procedure  1357, at 344 (2d ed. 1990).  For  a  good
example of such a case, see Ahwinona v. State, 922 P.2d 884,  886
(Alaska 1996).

     25    Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d  250,  253
(Alaska  2000);  Kollodge v. State, 757 P.2d 1024,  1026  (Alaska
1998).

     26    See  Slip  Op. at 8 (quoting Cooperman v.  Individual,
Inc., 171 F.3d 43, 47 (1st Cir. 1999)).

     27   Slip Op. at 8.

     28   See Slip Op. at 8-10.

     29   See Slip Op. at 11, note 18; 16-18.

30   Slip Op. at 9-10 (citations omitted).

     31   Slip Op. at 10, note 16.

32    5  Arthur  Linton  Corbin, Corbin on Contracts,   1079,  at
453-54 (1964) (citations omitted).

     33    Id. at 454; see also Restatement of Contracts  344, at
565  (1933),  as  quoted in McBain v. Pratt, 514  P.2d  823,  827
(Alaska  1973) (The damages for breach of an alternative contract
are  determined  in accordance with that one of the  alternatives
that  is  chosen by the party having an election, or, in case  of
breach  without  an election, in accordance with the  alternative
that will result in the smallest recovery.).

     34    See Uchitel Co. v. Telephone Co., 646 P.2d 229, 236-37
(Alaska 1982); McBain v. Pratt, 514 P.2d at 827.

     35   See sources cited supra note 33.

36   See Slip Op. at 11, note 18.

     37    2  Arthur Linton Corbin, Corbin on Contracts  498,  at
681  (1950)  (citations omitted), as quoted  in  Fleckenstein  v.
Faccio, 619 P.2d 1016, 1020 (Alaska 1980).

     38    Merdes v. Underwood, 742 P.2d 245, 253 (Alaska  1987);
Fleckenstein v. Faccio, 619 P.2d at 1020.

39    2  Arthur  Linton  Corbin, Corbin  on  Contracts   498,  at
681  (1950)  (citations omitted), as quoted  in  Fleckenstein  v.
Faccio, 619 P.2d at 1020.

     40    See  Martin  v.  Mears, 602 P.2d 421,  427-28  (Alaska
1979).

     41   Id. (emphasis added).

     42    The  opinions alternative theory of harmless error  is
unpersuasive  because it impermissibly regards  Valdez  Fisheries
proposed  amended  third-party  complaint  as  if  it  had   been
submitted as a response to a summary judgment motion.

          Here, Alyeska never filed a summary judgment motion and
submitted no materials outside the pleadings in seeking dismissal
under  Rule  12(b)(6).  Valdez Fisheries, in turn did not  submit
any  materials  outside  the  pleadings  when  opposing  Alyeskas
motion, and had no duty to do so.  Instead, it properly contended
that dismissal under 12(b)(6) would be improper because its third-
party   complaint  satisfied  Rule  8  by  alleging  that  Valdez
Fisheries  and  Alyeska had entered a contract to lease  the  Sea
Hawk   facility  and  that  Alyeska  had  later  repudiated  that
contract.  Valdez Fisheries also properly maintained that it  had
never  alleged  that the details contained in its complaint  were
exhaustive;  that  it had not yet been given the  opportunity  to
present  evidence  demonstrating the existence  of  the  contract
because Alyeska had not filed a motion for summary judgment;  and
that  conversion  of  the dismissal motion  to  one  for  summary
judgment would therefore be premature.

          In  response  to  these arguments, the  superior  court
dismissed  Valdez  Fisheries contract claim under  Rule  12(b)(6)
without looking beyond the pleadings, relying on the narrow  (and
legally  incorrect)  theory  that a complaint  must  specifically
allege  all steps of contract formation and that Valdez Fisheries
third-party  complaint failed to allege the required information.
Even  if  the  superior  court had elected  to  look  beyond  the
complaint and convert Alyeskas Rule 12(b)(6) motion into a motion
for summary judgment, moreover, the court would have been obliged
to  give  Valdez Fisheries notice of its intent to do  so  and  a
reasonable opportunity to present all material made pertinent  to
such  a  motion  by Rule 56.  Alaska R. Civ. P. 12(b)(6).   Given
these  circumstances, it is fundamentally unfair to treat  Valdez
Fisheries  proposed  amended complaint as a proxy  for  a  formal
response  to  a summary judgment motion that Alyeska  steadfastly
declined to file.  The opinions harmless error theory essentially
condones  a Rule 12(b)(6) dismissal by going beyond the pleadings
without  giving  Valdez  Fisheries fair notice  or  a  reasonable
opportunity to present all pertinent materials.