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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Froines v. Valdez Fisheries Development Assoc. (7/25/2003) sp-5714

Froines v. Valdez Fisheries Development Assoc. (7/25/2003) sp-5714

     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

CHRIS FROINES,                )
                              )    Supreme Court No. S-10340
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3VA-00-80 CI
                              )
VALDEZ FISHERIES              )
DEVELOPMENT ASSOCIATION,      )    O P I N I O N
INC.,                              )
                              )    [No. 5714 - July 25, 2003]
               Appellee.      )
                                                                )

          Appeal  from the Superior Court of the  State
          of Alaska, Third Judicial District at Valdez,
          Joel H. Bolger, Judge pro tem.

          Appearances:  Michael T. Stehle,  Law  Office
          of  Michael Stehle, Anchorage, for Appellant.
          Stephen   McAlpine,  Law  Office  of  Stephen
          McAlpine, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Bryner,  and Carpeneti, Justices.  [Eastaugh,
          Justice, not participating.]

          BRYNER, Justice.


I.   INTRODUCTION

           Chris  Froines  sued the Valdez Fisheries  Development

Association  for  breaching an agreement  to  renew  an  annually

issued  vessel  charter  contract making  him  a  member  of  the

association's fishing fleet.  The superior court entered  summary

judgment  against  Froines, ruling that the parol  evidence  rule

barred  him  from  using extrinsic evidence  to  prove  that  the

association had promised to renew his charter contract, which, by

its  own terms, expired at the end of the fishing season in which

it  was issued.  Froines appeals, contending that evidence of the

association's  renewal  policy was  admissible  under  the  parol

evidence  rule  because it neither modified nor contradicted  the

annual  charter  contract's terms.  Because  the  superior  court

overlooked extrinsic evidence raising triable issues of  fact  as

to  the  scope  and meaning of the annual charter  agreement,  we

reverse its summary judgment order.

II.  FACTS AND PROCEEDINGS

           The  Valdez  Fisheries Development  Association  is  a

private,  non-profit corporation organized by a group  of  Valdez

fishermen  in  1978  to  run a salmon  hatchery  in  the  Eastern

District  of the Prince William Sound.  The association  recovers

its  hatchery costs through a program that allows it  to  harvest

and sell some of its returning salmon each year.  The association

determines its operation costs, negotiates a price-per-pound with

local  fish processors, and figures the amount of salmon it needs

to  catch to recover its costs.  It then arranges for the fish to

be harvested during a one-month limited entry season between mid-

June  and  mid-July.  The remaining salmon are "common  property"

and are harvested by commercial and sport fishermen.

            Since   beginning  its  cost-recovery  program,   the

association  has  used several arrangements  for  harvesting  its

returning  salmon.  For the first few years of  the  program,  it

contracted  with a single individual to catch all the  fish;  for

the  next  few  years,  it  conducted its  cost-recovery  fishing

through volunteer participation, allowing anyone with a permit to

join in the fishing.  But in 1994 the association converted to  a

"fleet"  system of fishing.  Under this system, it recruited  ten

local  fishing vessels and entered into vessel charter agreements

with  their  owners.   The  individual vessel  charter  contracts

covered  the one-month cost-recovery season and set out  detailed

terms  addressing the fishing duties and compensation rates  that

would  apply during this period.  Under the terms of the  charter

agreements,  fleet  members would fish  individually  during  the

first  ten  days of the cost-recovery season, and each  would  be

paid on the basis of its own production, receiving ten percent of

the  value of its catch or a minimum of $500 per day.  During the

balance  of  the  cost-recovery season, if the association  began

harvesting  more  fish than it could sell, the charter  contracts

required  the  fleet  members  to fish  together  as  a  "combine

fishery"  under the direction of the association's  cost-recovery

fleet  manager.  For  this combined fishing effort,  the  charter

agreements provided that each vessel would be paid an equal share

of the entire fleet's production.

           The  association evidently planned to retain the  same

fleet in 1995 that it used in 1994.  But in response to inquiries

from persons interested in joining the cost-recovery fishery, the

association's board of directors and cost-recovery fleet manager,

Mike Wells, began discussing ways to introduce new boats into the

fleet.   In  a  memo to the board during the 1994-95  off-season,

Wells  proposed  a system to replace "the boat  with  the  lowest

landing  each season."  Wells favored the idea because it  "would

at  least  ensure that a spot becomes available each season"  and

"because  it would help to put some additional incentive  on  the

fishermen to not be the last in line."

           The board discussed Wells's suggestion at its February

14,  1995,  meeting,  and  the  suggestion  was  apparently  well

received; the minutes of the board's meetings noted that

          Mike  wrote a letter proposing that each year
          we  drop  the bottom boat.  This would  allow
          the   group   to  change  over   time.    The
          replacement   list   would   be   from   past
          experience  and a local or greater  interest.
          We  will  notify the fleet this year and  see
          what they have to say.
          
           A  short  time later, Wells described the new  renewal

arrangement  in a cover letter sent to fleet members  with  their

1995 charter contracts:

                In  talks  with  the  VFDA's  Board  of
          Directors, I was asked to come up with a fair
          and  equitable way to add new boats into  our
          cost    recovery   program.     After    much
          consideration, we have decided to replace the
          boat with the lowest total pounds caught each
          year.  A new vessel will be selected out of a
          pool  of names to replace the number 10 boat.
          Of  course someone will always be last and in
          the event that one of the remaining nine does
          not  return, the tenth vessel will be offered
          a position.
          
          After the 1995 cost-recovery season - the second season

of  fleet fishing and the first under the newly announced renewal

arrangement - one of the fleet's ten original vessels decided  to

drop out of the fleet.  This made it unnecessary to eliminate the

lowest  producing boat, and the association ultimately  opted  to

keep  the  fleet  at  nine  boats for  the  1996  season.   Wells

explained  the situation to fleet members in his cover letter  to

their 1996 vessel charter contracts: "Because VFDA will not  fill

the  tenth vessel position for 1996, VFDA will not seek  to  drop

the  boat with the lowest pounds landed at the end of the  [1995]

season."

          The situation remained unchanged after the 1996 season:

the  fleet retained its nine remaining original members, and  the

association elected not to add a new vessel. In his cover  letter

distributed with the 1997 vessel charter contracts to members  of

the  fleet, Wells indicated that a price reduction was "the  only

change  from  our  previous programs" and noted that  "all  other

aspects of the harvest will remain the same."

           Froines fished with the fleet from its opening  season

in  1994  through 1997. His boat, the Nikki Ann, was  the  fourth

highest  producing  boat during the 1997 cost-  recovery  season.

After  that season ended, most fishermen in the Valdez area  went

on  strike  to  protest  the low prices  being  offered  by  area

processors.   But  Froines  declined to  join  the  strike.   His

decision to continue fishing during the strike upset many of  the

association's  board members and officers.  As  the  1998  season

approached,  Wells recommended that Froines's boat be  terminated

from  the fleet for unspecified "past performance" reasons.   The

board voted to follow Wells's recommendation in May 1998, and the

association declined to renew Froines's contract as a  member  of

the cost-recovery fleet.1

           Froines  sued  the association.  He claimed  that,  by

declining to renew his fishing contract in 1998, it breached  its

promise  to  retain all but the least productive  vessel  in  its

fleet  from year to year.  During pretrial discovery,  Wells  and

various  association board members gave deposition  testimony  in

which  they  arguably  acknowledged  that  the  association   had

implemented  the  alleged renewal policy in  1994  and  that  the

policy  remained in effect when the association refused to  renew

Froines's  fishing contract in 1998.  For example, in  responding

to  questions about the May 1998 meeting at which the board voted

to  replace  Froines's vessel, Jason Wells, a former  association

board  member, admitted that the main concern "was that the board

follow  its policy and base that decision on production."   Wells

then  confirmed that the policy at issue was the  one  "put  into

place  at  the  end  of the `94 season, beginning  of  [the]  `95

season, that the lowest producing boat would, in fact, be dropped

or replaced with a new boat."

           There was also deposition testimony acknowledging that

some  board  members were angry with Froines for his  refusal  to

join  the fishing strike during the 1997 fishing season and  that

they  wanted  to  eliminate him from the fleet for  that  reason.

Furthermore, Mike Wells conceded that the Nikki Ann had been  one

of  the fleet's most productive boats in 1997.  Wells nonetheless

claimed that the Nikki Ann's production levels were lower in 1995

and  1996 and that Froines had generally put forth little  effort

during  the fleet's periods of "combine" fishing.  Froines denied

these  claims,  pointing out that they were based  on  statistics

compiled after the board voted not to renew his contract.

          Shortly before trial, Froines moved for partial summary

judgment  on  liability; relying on the deposition testimony  and

other documentary evidence, he  claimed that the association  had

effectively  admitted that it violated its renewal  policy.2  The

association opposed Froines's motion.  In addition, it  moved  to

exclude  any  evidence  offered by Froines  to  suggest  that  an

enforceable   renewal  contract  existed.    According   to   the

association, the parol evidence rule barred this evidence because

proof of a promise to renew fleet membership would contradict the

terms  of  the  annual vessel charter contracts, which  expressly

limited  the  duration of the fishing contracts to the  one-month

cost-recovery season each year, contained no renewal  provisions,

and  included an integration clause declaring that "there are  no

other agreements or understandings, oral or written, between  the

Owner and the Corporation."

           After  reviewing all evidence submitted in  connection

with the pending motions, hearing oral argument, and offering  to

hold  a  hearing  to allow further evidence, the  superior  court

entered a decision denying Froines's summary judgment motion  and

granting the association's parol evidence motion.  In so  ruling,

the  court  concluded  that extrinsic  evidence  of  the  renewal

agreement would violate the parol evidence rule by modifying  the

express  terms  of  the  annual charter contracts.   Because  the

parties  agreed  that  this  ruling effectively  granted  summary

judgment to the association, the superior court entered  a  final

judgment against Froines.  Froines appeals.

III. DISCUSSION

     A.   Standard of Review

            We   independently  review  orders  granting  summary

judgment,  drawing  all reasonable inferences  in  favor  of  the

non_moving party to determine whether the record raises a genuine

dispute  as  to any facts material to a viable legal  theory  and

whether  the moving party is entitled to judgment as a matter  of

law.3

     B.   Parol Evidence Ruling

           When  a  written statement sets out the  terms  of  an

agreement  between contracting parties, the parol  evidence  rule

generally  precludes  the parties from using  evidence  of  prior

agreements  to  contradict the written terms.4   If  the  writing

expresses  part  of  the  parties' agreement,  the  agreement  is

considered  to be partially integrated; a writing that  sets  out

the parties' complete agreement is deemed fully integrated.5  The

parol evidence rule forbids contradiction of partially integrated

terms but allows them to be "explained or supplemented . .  .  by

evidence of consistent additional terms."6  In contrast, the rule

does  not  allow the terms of a fully integrated contract  to  be

varied  by evidence of additional terms, even if those terms  are

consistent.7

           Our  case  law  describes  a  three-step  process  for

resolving  parol  evidence  issues,  requiring  trial  courts  to

consider:  (1) whether the contract is integrated, (2)  what  the

contract  means,  and  (3) whether the prior agreement  conflicts

with the integrated agreement.8  We have summarized the requisite

inquiry as follows:

                The  parol  evidence rule is implicated
          when  one  party seeks to introduce extrinsic
          evidence  which  varies  or  contradicts   an
          integrated  contract.   Once  the   rule   is
          triggered,     the    parties'     reasonable
          expectations  are determined  by  applying  a
          three_step  test.   The  first  step  is   to
          determine whether the contract is integrated.
          The  second  step  is to determine  what  the
          contract means.  Determining the meaning of a
          contract is treated as a question of law  for
          the  court  except where there is conflicting
          extrinsic evidence on which resolution of the
          contract's  meaning depends. . .  .   If  the
          language  is  susceptible to  [two]  asserted
          meanings, then interpreting the contract is a
          question  of  fact for the  jury.   Extrinsic
          evidence  may always be received in resolving
          these first two inquiries.  The third step is
          to  determine  whether  the  prior  agreement
          conflicts   with   the  integrated   writing.
          Whether   there   is  conflicting   extrinsic
          evidence   depends  on  whether   the   prior
          agreement    is   inconsistent    with    the
          integration.   Inconsistency  is  defined  as
          "the  absence of reasonable harmony in  terms
          of the language and respective obligations of
          the  parties." . . . While extrinsic evidence
          is    important,   nonetheless   after    the
          transaction has been shown in all its  length
          and  breadth,  the  words  of  an  integrated
          agreement remain the most important  evidence
          of intention.[9]
          
           In  the  present case, the superior court acknowledged

the need to conduct this three-step inquiry and briefly addressed

each  step.  But the court did not clearly recognize that it  was

required  to  consider  the totality of the  evidence,  including

extrinsic  evidence of the renewal agreement, in  addressing  the

first  two  issues  - integration and contractual  meaning.   The

point   is   significant,  since  our  cases  have   consistently

emphasized  that "[e]xtrinsic evidence may always be received  in

resolving [the] first two inquiries."10

           Addressing the first issue, integration, the  superior

court  simply  quoted the charter agreement's integration  clause

and  cited  Kupka  v. Morey for the proposition  that  "contracts

containing  such clauses are partially integrated so  that  parol

evidence may not be used to prove a provision that contradicts or

is  inconsistent  with a specific term of the  contract."11   The

court  then  turned to the issue of contractual meaning.   Noting

that   time   charter  agreements  are  inherently   fixed-period

contracts  and that the agreements at issue here expressly  fixed

the  duration of the charters to "the period of June 20 . . .  to

July 20" each year, the court summarily ruled that "[t]he meaning

of  this  term  is  fairly clear from the language  of  the  time

charter,  and  Froines does not identify any  ambiguity  in  this

language."   Turning  to the third-step issue  of  conflict,  the

court,  again appearing to rely exclusively on the plain  meaning

of  the  written  charter  agreements, concluded  that  Froines's

allegation  of  a  renewal agreement "was inconsistent  with  the

unambiguous terms of the time charter in that it contradicted the

provision for the anticipated duration of the charter."12

           Since  Froines has not challenged the validity of  the

charter  agreements' integration clauses or  alleged  that  those

agreements  do  not accurately memorialize part of  the  parties'

overall  agreement, we agree with the trial court's  reliance  on

Kupka  v.  Morey to establish that the integration clauses  alone

allowed  the  charter  agreements  to  be  treated  as  partially

integrated contracts.13  But the court's conclusion on this point

did not eliminate the need to consider and weigh the totality  of

the  evidence for purposes of determining the intended scope  and

meaning  of  the  charter agreements in relation to  the  alleged

renewal  agreement.   To  the contrary, recognizing  the  charter

agreements  to  be partial expressions of the parties'  agreement

made  it  crucial to determine the scope and meaning of the  full

agreement   in  light  of  all  available  evidence  -  including

Froines's proposed evidence of a renewal agreement.

           As we indicated earlier, however, the superior court's

second-step determination of contractual meaning focused narrowly

and  exclusively  on the literal terms of the charter  contracts'

one-month duration provisions.  The superior court saw no need to

look  further,  noting  that  "Froines  does  not  identify   any

ambiguity  in this language."  This finding suggests a belief  by

the   court  that  Froines's  extrinsic  evidence  of  a  renewal

agreement  could not be considered without an initial showing  of

ambiguity  in  the  written provisions.  Yet  we  have  expressly

recognized that a trial court's duty to consider the totality  of

the  evidence in resolving issues of integration and  contractual

meaning   extends  to  all  cases  and  requires  no  preliminary

indication of ambiguity in the written agreement:

                In  the past, this court has stated  or
          implied that resort to extrinsic evidence can
          take  place only after a preliminary  finding
          of  ambiguity.  Thus, a  court  would  review
          extrinsic  evidence  to  make  a  preliminary
          finding  of ambiguity and only then  consider
          extrinsic   evidence   in   construing    the
          contract.   A  minority  of  this  court  has
          repeatedly criticized this two_tiered test as
          artificial and unduly cumbersome, noting that
          it   offers  no  advantage  over  one   which
          initially  turns  to extrinsic  evidence  for
          such  light  as it may shed on the reasonable
          expectations of the parties.  We  think  this
          criticism  is  sound and  hold,  as  we  have
          intimated  before,  that  a  court  in   this
          jurisdiction may initially turn to  extrinsic
          evidence in construing a contract.[14]
          
           Here, under the evidence before the superior court  at

the  time  of  its ruling, the scope and meaning of  the  charter

agreements  were  hotly disputed issues.  The association  denied

formally adopting the alleged renewal policy and maintained  that

the  charter  agreements  were fully  integrated  contracts  that

expressed  the  parties'  complete  agreement,  ruling  out   any

possibility of an enforceable renewal agreement.  Froines, on the

other  hand,  asserted that the association had all but  admitted

the   renewal   policy's  existence.   Portraying   the   charter

agreements as contracts that were limited in subject and scope to

governing the fleet's fishing activities during the cost-recovery

season  proper,  Froines characterized the renewal  policy  as  a

supplemental  contractual  term  that  was  consistent  with  the

charter agreements because the renewal policy merely enabled  the

parties to determine how the fleet would be selected between each

season of fishing.

           "Generally, the interpretation of a writing is a  task

for  the  court.   However, where `interpretation  of  a  written

instrument  turns  on the acceptance of extrinsic  evidence,  the

process  of  weighing such evidence should be for  the  trier  of

fact.' "15  More specifically, we have explained that

          [w]hether   there  is  conflicting  extrinsic
          evidence is a question resolved by the court.
          Even  where  there  is conflicting  extrinsic
          evidence  the court decides the  question  of
          meaning  except  where the written  language,
          when read in context with its subject matter,
          is  reasonably  susceptible to both  asserted
          meanings.  If the language is susceptible  to
          both asserted meanings, then interpreting the
          contract is a question of fact for the  jury.
          Extrinsic evidence may always be received  in
          resolving [this issue].[16]
          
           Viewing  the totality of the evidence in  the  present

case  in  the light most favorable to Froines, we find  extrinsic

evidence  that, if accepted, is reasonably susceptible  to  being

viewed as proof of a renewal policy that would supplement, rather

than   contradict,  the  terms  of  the  annual  vessel   charter

agreements.   In  context,  the  alleged  renewal  policy   could

reasonably  be  seen  as merely determining how  the  association

would select candidates for its fleet from season to season  -  a

subject  beyond  the  narrower scope of the fixed-period  charter

agreements.   So  construed,  the renewal  policy  would  neither

extend  nor alter the terms of the annual charter agreements;  it

would simply promise those vessel owners who were invited to join

the  current year's fleet that, in return for a productive season

of  fishing  under the current charter agreement, they  would  be

invited  back  to  fish with the fleet the following  year  under

whatever terms the association might offer them  - assuming  that

the  association  elected to retain its  fleet  method  of  cost-

recovery fishing.17  Accordingly, the alleged renewal policy would

not contradict the terms of the vessel charter agreements.18

           Because the alleged renewal policy is not inconsistent

with the charter agreements, the parol evidence rule does not bar

extrinsic  evidence  tending to prove the policy's  adoption  and

continued  existence.  And because reasonable jurors viewing  the

evidence  in the light most favorable to Froines could find  that

the  association adopted and breached a policy of this  kind,  we

conclude  that  entry  of summary judgment  for  the  association

amounted to error.19

IV.  CONCLUSION

           For  these  reasons, we REVERSE the  superior  court's

judgment and REMAND the case for further proceedings.

_______________________________
1The board also voted to terminate a second vessel from the fleet
in  1998, the Kerri Lynn, a vessel that had consistently been the
fleet's  lowest producer and whose owner had experienced  ongoing
problems  maintaining  a regular fishing  schedule.  Because  the
projected   cost-recovery  harvest   for   1998   had   increased
significantly over prior years, the board decided  to  add  three
new  boats  to the fleet: two to replace the Nikki  Ann  and  the
Kerri  Lynn, and a new boat to restore the fleet to its  original
size of ten vessels.
2Froines  also moved to exclude the testimony of other  fishermen
expressing  their subjective impressions concerning  whether  the
board's  actions  amounted  to the adoption  of  a  contractually
binding  renewal  policy, and to preclude  the  association  from
relying  on its annual vessel charter contracts as a legal  basis
for denying the existence of a renewal policy as a matter of law.
3E.g., Philbin v. Matanuska_Susitna Borough, 991 P.2d 1263,  1265
(Alaska 1999).
4E.g., id. at 1270; Alaska Diversified Contractors, Inc. v. Lower
Kuskokwim Sch. Dist., 778 P.2d 581, 583 (Alaska 1989).   Alaska's
version of the parol evidence rule is stated in AS 45.02.202:

          Final  written expression; parol or extrinsic
          evidence.  Terms with respect  to  which  the
          confirmatory memoranda of the parties  agree,
          or  which are otherwise set out in a  writing
          intended by the parties as a final expression
          of  their agreement with respect to the terms
          included   in  the  writing,   may   not   be
          contradicted by evidence of a prior agreement
          or  of a contemporaneous oral agreement,  but
          may be explained or supplemented
          
                (1)   by course of dealing or usage  of
          trade   (AS   45.01.205)  or  by  course   of
          performance (AS 45.02.208); and
          
                 (2)    by   evidence   of   consistent
          additional terms unless the court  finds  the
          writing  was intended also as a complete  and
          exclusive  statement  of  the  terms  of  the
          agreement.
          
This  provision codifies the parol evidence rule in section 2-202
of  the Uniform Commercial Code and parallels section 215 of  the
Restatement (Second) of Contracts.  See Alaska N. Dev.,  Inc.  v.
Alyeska  Pipeline  Serv. Co., 666 P.2d 33,  36,  39  n.5  (Alaska
1983).

5 Restatement (Second) of Contracts  210 (1981).
6AS  45.02.202(2);  see  also Restatement (Second)  of  Contracts
 215, 216(1) (1981).
7AS  45.02.202(2);  Restatement  (Second)  of  Contracts   216(1)
(1981).
8E.g., Alaska Diversified Contractors, Inc., 778 P.2d at 583.
9Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 657
n.4 (Alaska 1991) (citations omitted).
10Western  Pioneer, Inc., 818 P.2d at 657 n.4; see also  Northern
Timber  Corp.  v.  State, Dep't of Trans. & Pub. Facilities,  927
P.2d 1281, 1287 (Alaska 1996) (quoting Western Pioneer, Inc.  and
applying  the  three-part test); Neal & Co.,  Inc.  v.  Ass'n  of
Village  Council Presidents Reg'l Hous. Auth., 895 P.2d 497,  504
(Alaska 1995) (same).
11541 P.2d 740, 748 (Alaska 1975).
12The  court  went on to determine that evidence of  the  renewal
agreement  also  could not be admitted as  proof  of  a  separate
contract,  concluding  that it would have been  natural  for  the
parties  to  have included the renewal agreement in  the  charter
contracts  if  they had meant to adopt it.  But as  the  superior
court  itself seems to have recognized, this analysis would  have
applied only if the court had found the charter agreements to  be
fully  integrated  contracts  - an issue  that  the  court  never
addressed.   In  any  event,  our  conclusion  that  reversal  is
necessary  because  the  alleged  renewal  agreement  would   not
necessarily  have  contradicted the charter agreements  makes  it
unnecessary to address this alternative analysis.
13Under  Kupka  v. Morey, however, an integration clause  is  not
completely   self-validating,  since  parol  evidence   must   be
considered to determine whether the clause is valid:

          [C]ontracts   containing  such  clauses   are
          partially  integrated so that parol  evidence
          may  not  be  used to prove a provision  that
          contradicts   or  is  inconsistent   with   a
          specific term of the contract (other than the
          integration clause itself)."
          
541 P.2d at 748.  Here, of course, the superior court had no need
to  consider  parol evidence in determining the validity  of  the
integration   clause  under  Kupka,  since  Froines   essentially
acknowledged that the charter contracts were partially integrated
agreements.

14Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767,  771  n.1
(Alaska 1982) (citations omitted).
15Id.  at  771 n.2 (citation omitted) (quoting Hausam v. Wodrich,
574 P.2d 805, 809 (Alaska 1978)).
16Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 657
n.4 (Alaska 1991) (citations omitted).
17In  our  view, the evidence in the record fails to suggest  any
implied  promise or commitment by the association to  retain  its
fleet  method  of  fishing  from  one  year  to  the  next,  thus
necessarily  making any right of renewal accruing  to  successful
fleet  members  at  the  end  of  a  season  contingent  on   the
association's election to pursue the same method of cost-recovery
fishing the following year.
18In  analyzing the viability of the alleged renewal policy as  a
separate  contract, the superior court expressed  the  view  that
this  kind  of  arrangement would fail for want  of  sufficiently
specific  terms and for lack of consideration.  We disagree.   As
described,  the  terms  of the bargain are  fairly  specific:  in
return  for a productive season of fishing (defined as not  being
the  least  productive boat in the fleet),  the  alleged  renewal
policy  promises  that if the fleet method is continued,  current
fleet  members  will be invited back to fish again the  following
season.   Nor  would this arrangement lack mutual  consideration.
From the association's point of view, as Mike Wells observed when
he  recommended  the  renewal policy to the board  in  1995,  the
policy  offered an equitable way of rotating new boats  into  the
fleet, while simultaneously encouraging more efficient production
by  helping "to put some additional incentive on the fishermen to
not  be  the  last in line."  And from the cost-recovery  fleet's
perspective, the policy offered a way of earning the right to  be
invited  to  fish  again if the association  retained  its  fleet
system the following year.
19Froines additionally maintains that the superior court erred in
denying  his motion for partial summary judgment on the issue  of
liability.   We find no merit to this point since, in  our  view,
substantial evidence supports both parties' positions and  raises
genuine  issues of material fact that preclude summary  judgment.
Froines  separately argues that the court erred  in  denying  his
motion to exclude testimony concerning subjective impressions  as
to  the  scope and meaning of the disputed renewal  policy.   But
this  argument  raises  evidentiary issues  that  are  ordinarily
committed to the sound discretion of the trial court in the first
instance.   Because  the court's denial of  Froines's  motion  to
exclude this evidence appears to have been dictated by its ruling
on  the parol evidence issue, which we have now reversed, we  see
no need to address this evidentiary point at present.