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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. J & S Services, Inc. v. Tomter (07/21/2006) sp-6024

J & S Services, Inc. v. Tomter (07/21/2006) sp-6024, 139 P3d 544

     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,


) Supreme Court No. S- 11375
Appellant, )
) Superior Court No. 3AN-02-11936 CI
v. )
OF NATURAL RESOURCES, ) No. 6024 - July 21, 2006
Appellees. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Anchorage, Sharon Gleason,

          Appearances:  Herbert A. Viergutz, Anchorage,
          for  Appellant.  Erin B. Marston and  Colleen
          J.  Moore,  Marston & Cole, P.C.,  Anchorage,
          for  Appellee  Tomter.   Stephanie  Galbraith
          Moore    and   David   H.  Knapp,   Assistant
          Attorneys  General, Anchorage, and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee  State  of  Alaska,  Department   of
          Natural Resources.

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

          BRYNER, Chief Justice.

          In this case we must determine whether the Alaska State
Procurement  Codes exclusive remedy provision bars a disappointed
contractor  from suing the state and a state procurement  officer
in  contract and tort for money damages resulting from  allegedly
intentional  misconduct  in awarding a contract  under  a  state-
issued request for proposals.  Here, because the exclusive remedy
provision  unequivocally bars J&S Servicess civil action  against
the  Department  of  Natural Resources, we  affirm  the  superior
courts dismissal as to the department.  But by its own terms, the
exclusive  remedy  provision applies only to claims  against  the
state,  so  it  does  not categorically bar J&Ss  claims  against
Tomter  individually.   J&Ss  complaint  against  Tomter  alleges
intentional misconduct that potentially falls outside  the  scope
of  Tomters  official  duties;  that  would  not  necessarily  be
shielded  by Tomters right to claim official immunity;  and  that
could  conceivably  support a viable  claim  under  the  theories
pleaded  in the complaint and the facts shown in the record.   We
therefore  conclude that dismissing the individual claim  against
Tomter was improper.
          In  November  2001 the Department of Natural  Resources
issued  a  request  for  proposals (RFP),  seeking  to  lease  an
airplane  for  fighting fires.  Matthew Tomter,  the  departments
director  of aviation, was the project manager for the RFP.   The
request  ultimately produced only one response  by  the  original
deadline,  a  proposal from J&S Services.  After  the  department
extended   the   original  deadline,  Tomter  contacted   several
companies   soliciting  additional  proposals.    He   reportedly
complained  to  an officer of one of the companies  he  contacted
that  J&S  was  a  pain  in  the ass.  A second  company,  Toram,
submitted  two proposals by the extended deadline date.   One  of
Torams  two owners, Russ Torrison, was a close friend of  Tomter.
The  company  evidently had no prior experience in  the  sale  or
leasing  of aircraft and was established for the sole purpose  of
responding  to  the  RFP.   Tomter  communicated  with   Torrison
repeatedly  during  the bid evaluation process.   The  department
ultimately declared Torams proposal superior to J&Ss and  awarded
the contract to Toram.
          J&S  protested the award, but the department denied the
protest.    J&S   then   appealed   to   the   commissioner    of
administration, complaining that the proposals had been  unfairly
scored.  The commissioner granted an evidentiary hearing on  J&Ss
claim  of  impropriety.  Although the hearing  officer  found  no
actual  impropriety  and  determined  that  Torams  proposal  was
clearly  superior to J&Ss, he nevertheless concluded that Tomters
numerous   contacts  with  Torrison  created  an  appearance   of
impropriety.  On this limited basis, the hearing officer resolved
the  appeal  in  J&Ss favor, recommending that  the  commissioner
award the company its proposal preparation costs as damages.  The
commissioner adopted this recommendation as his final decision.
          J&S appealed the commissioners administrative ruling to
the  superior  court.  J&S also filed a separate  superior  court
action  against the department and Tomter.  Its complaint accused
Tomter  individually  and  the  department  as  his  employer  of
improperly  interfering  with J&Ss lease  proposal  and  favoring
Torams by communicating with Torrison during the RFP process  and
unfairly  evaluating  the  competing  proposals.   The  complaint
sought compensatory and punitive damages, advancing six causes of
action   in   tort  and  contract,  including  misrepresentation,
negligence,   fraud,   interference  with  prospective   business
advantage, breach of implied warranty, and breach of the covenant
of good faith and fair dealing.
          The  department  moved to dismiss J&Ss complaint  under
Alaska Civil Rule 12(b)(6), asserting that the Alaska procurement
codes  exclusive  remedy provision and the  civil  codes  related
immunity provision barred J&S from suing in tort or contract  for
damages  arising  from the procurement process, requiring  it  to
pursue  its  administrative appeal as its sole source of  relief.
The  departments motion advanced a number of alternative  grounds
for  dismissal, including a theory that J&Ss complaint failed  to
state  a viable claim.  In response to the dismissal motion,  J&S
asked  the  superior court to allow discovery; despite opposition
by the department, the court allowed discovery to proceed.
          After  the  parties conducted discovery  and  submitted
additional  pleadings, the superior court heard oral argument  on
the  departments  motion to dismiss.  The department  and  Tomter
renewed  their  original  argument  that  the  procurement  codes
exclusive   remedy  provision  limited  J&Ss  recourse   to   its
separately  pending  administrative appeal.  The  superior  court
accepted  this argument and dismissed the complaint against  both
the  department  and  Tomter,  based  on  the  procurement  codes
exclusive  remedy  provision and the  civil  codes  corresponding
provision granting the state immunity from liability in  a  civil
action arising out of a procurement dispute.  The superior  court
awarded attorneys fees to the department, denied J&Ss motion  for
relief from judgment, and entered final judgment against J&S.
          The  superior  court stayed J&Ss administrative  appeal
pending  resolution of J&Ss civil action.  J&S  now  appeals  the
order dismissing its civil action.
          On  appeal,  J&S primarily contends that  the  superior
court  erred  in dismissing its complaint against the  department
and Tomter as barred by the exclusive remedy provision.1
     A.   Standard of Review
          In  considering an appeal from a dismissal  under  Rule
12(b)(6),  we  apply  de  novo review,2 presum[ing]  all  factual
allegations  of  the  complaint  to  be  true  and  [making]  all
reasonable  inferences . . . in favor of the  non-moving  party.3
To  survive  a  motion for dismissal under Rule 12(b)(6),  it  is
enough   that  the  complaint  set  forth  allegations  of   fact
consistent  with  and  appropriate to some enforceable  cause  of
action.4   Only  if the plaintiff can prove no set  of  facts  in
support  of  his  claim which would entitle  him  to  relief,  is
dismissal  proper.5  But even a complaint that is  sufficient  on
its  face  may  be  defeated  by a properly  pleaded  affirmative
     B.   Exclusive Remedy Provision
          Alaskas  State  Procurement Code7 sets  out  legal  and
contractual remedies for state procurement disputes in article 8,
which is codified as AS 36.30.55036.30.699.  The key provision in
article  8  at issue in this case is AS 36.30.690, which  states:
Notwithstanding  AS  44.77  or other  law  to  the  contrary,  AS
36.30.56036.30.699 and regulations adopted under  those  sections
provide the exclusive procedure for asserting a claim against  an
agency arising in relation to a procurement under this chapter.
          The  exclusive  procedure adopted by the  code  permits
only  one narrow administrative channel for obtaining relief  and
allows only a single, limited remedy:  The code requires offerors
to  seek  administrative review of a procurement officers actions
by  appealing to the commissioner of administration, whose  final
decision may then be appealed to the superior court;8 and when  a
disappointed  offeror  prevails, the code  expressly  limits  the
offerors   award  of  damages  to  reasonable  .  .  .   proposal
preparation   costs.9   In  Bowers  Office  Products,   Inc.   v.
University   of  Alaska,  we  recognized  that  these  provisions
create[]  an  exclusive remedy for interested parties  protesting
the states award of a purchasing contract.10
          Alaskas Code of Civil Procedure confirms and reinforces
the  procurement codes exclusive remedy provisions by  preserving
the  states sovereign immunity from liability in any civil action
arising  from  a  procurement  dispute.   Although  AS  09.50.250
generally waives the states right to claim sovereign immunity  as
to  persons  having  a contract, quasi-contract,  or  tort  claim
against  the  state,  the statute carves  out  an  exception  for
procurement  cases, providing, A person who may bring  an  action
under AS 36.30.560  36.30.695 may not bring an action under  this
section except as set out in AS 36.30.685.
          1.   Dismissal of claims against the department
          J&Ss  complaint  against the department  unquestionably
amounts  to  a claim against an agency arising in relation  to  a
procurement under AS 36.30.690; and J&S indisputably qualifies as
[a] person who may bring an action under AS 36.30.560  36.30.695.
Because  these  provisions unambiguously apply to J&S  and  allow
only  a  narrow  form of administrative redress, they  appear  to
directly  bar  J&S  from pursuing its contract  and  tort  claims
against the department.
          Indeed,  J&S offers no persuasive basis to  avoid  this
conclusion.  It suggests that the procurement codes remedies  may
be  inadequate, and should not be applied, because its  complaint
alleges  bad  faith and deliberate misconduct.  But  we  rejected
similar arguments when we limited an unsuccessful bidders  remedy
against  the  state to bid preparation costs in  King  v.  Alaska
State  Housing  Authority.11  In King, we  held  that  an  agency
impliedly  contracts  to give bids it solicits  fair  and  honest
consideration.12   Adopting the rule in  Heyer  Products  Co.  v.
United  States,13 we recognized that subjective bad faith on  the
part  of  procuring  officials causes the  state  to  breach  its
implied contract with the bidder.14  We discussed how an unlimited
damages  remedy  would subject the state to excessive  litigation
arising out of the procurement process, impede the right  of  the
department  to reject any and all bids, and force the  public  to
pay  twice,  once  for a bad procurement and  a  second  time  to
compensate  the wronged bidder,15 and ultimately  held  that  bid
preparation costs were the only damages properly available to the
bidder from the state.16
          Accordingly,  we  conclude  that  the  superior   court
correctly dismissed J&Ss complaint against the department on  the
ground that the exclusive remedy provision barred the claims.
          2.   Dismissal of claims against Tomter
          The same conclusion does not necessarily hold true with
respect  to J&Ss claims against Tomter.  As indicated above,  the
exclusive remedy provision and the corresponding immunity statute
apply  to a claim against an agency17 and to a claim against  the
state,18  but  do not expressly bar claims against individuals.19
Insofar  as  J&S  makes claims against Tomter  as  a  procurement
officer  acting within the course and scope of his duties,  then,
the exclusive remedy provision would appear to bar the complaint.
But on the other hand, to the extent that J&Ss complaint might be
seen  as  an individual action against Tomter for deliberate  and
bad  faith misconduct that falls outside the scope of his  proper
duties,  then it might not be fair to characterize the  complaint
as  a  claim against the state or to dismiss it as barred by  the
exclusive remedy provision.
          On  its  face,  the  complaint does not  restrict  J&Ss
claims  against  Tomter  to  actions  he  took  in  his  official
capacity.   And  neither  the department  nor  Tomter  cites  any
authority   that  would  support  automatically   extending   the
exclusive remedy provision to conclusively bar, as claims against
an agency, all procurement-related complaints accusing individual
public officials of engaging in deliberate acts of misconduct.
          Nor  does our decision in King v. Alaska State  Housing
Authority  compel  such  a  sweeping  extension.   King  did  not
consider  whether  a bidder could sue an individual  official  in
tort  for  acting in bad faith outside the scope of  his  duties;
rather,  it  only  considered the consequences to  the  state  of
breaching its implied contractual duty of good faith to a bidder.
Although  we  recognized  that  a  promise  of  honest  and  fair
consideration  of bids can reasonably be implied  in  the  public
contract  context, we emphasized the exclusive remedy  provisions
importance  as  a  counterweight to the extra responsibility  the
          government bears as it contracts.20  Yet this rationale loses much
of its force when a bidder claims deliberate misconduct occurring
outside the course of an officials usual duties and seeks damages
from the individual rather than from the state.
          To  be sure, we recognize that allowing officials to be
sued  individually  for  intentional misconduct  occurring  under
color  of  law  might entail certain risks, such as  discouraging
proper  as well as improper state action and encouraging  efforts
to  evade the exclusive remedy provision.  Yet we think  that  in
the  procurement  context, as in other areas  involving  official
misconduct,  we  can best address concerns like these  using  the
traditional  legal framework governing official immunity,  rather
than  by  artificially extending a limitation expressly drawn  to
apply  only to claims against state agencies rather than  against
individual officials.
          In  determining  the  scope of  official  immunity  for
discretionary  acts  done  within  the  scope  of  an   officials
authority,  we generally seek to balance the publics interest  in
efficient,  unflinching  leadership  and  the  interests  of  the
injured parties by considering three factors: (1) The nature  and
importance  of  the function that the officer  performed  to  the
administration of government . . . ; (2) The likelihood that  the
officer  will  be subjected to frequent accusations  of  wrongful
motives  and  how  easily the officer can  defend  against  these
allegations;  and  (3) The availability to the injured  party  of
other  remedies or other forms of relief . . . .21  When  dealing
with  core  duties  and  vital functions, the  balance  sometimes
favors  applying a rule of absolute immunity.22  But the  balance
more  typically requires qualified immunity, which only  protects
public officials from acts done in good faith.23
          In  the procurement context, it seems likely that state
officials  would be entitled to absolute immunity  against  suits
alleging   impropriety  in  the  performance  of   certain   core
functions,  such as evaluating and scoring subjective  components
of  competing offers.  For present purposes, however, we need not
resolve  the  issue.   Here, the superior  court  dismissed  J&Ss
complaint  against Tomter on the sole ground that the action  was
barred by the exclusive remedy provision.  The court did not rely
on   official  immunity  or  undertake  the  balancing   analysis
necessary  to  determine if Tomter should  be  deemed  absolutely
immune or only immune if he acted in good faith.  On appeal,  the
parties provide no meaningful briefing on this issue.  But  since
J&S  expressly alleges that Tomter acted in bad faith and engaged
in  a  course  of  deliberate misconduct   potentially  including
illegal  actions  it seems apparent that Tomter would be entitled
to   dismissal  on  grounds  of  official  immunity  only  if  he
established  circumstances  affording  him  the  right  to  claim
absolute  immunity.  Tomter has shown no such circumstances,  and
we  are unprepared to say as a matter of law that J&S could prove
no  set  of  facts  under which Tomter would  be  unprotected  by
absolute immunity.24  Accordingly, dismissing the individual claim
against  Tomter as barred by the exclusive remedy provision  does
not appear to be justified.
     C.   Failure To State a Viable Claim
          The  department and Tomter alternatively claim that the
superior  courts judgment dismissing the complaint  against  both
defendants was justified because J&Ss complaint failed to  allege
facts  sufficient  to support any of the complaints  specifically
alleged  causes of action.  This argument might have considerable
merit  if we strictly limited our consideration of this point  to
the facts set forth in J&Ss complaint, as we ordinarily would  in
reviewing  a dismissal under Civil Rule 12(b)(6).  The  complaint
asserts  claims against Tomter for misrepresentation, negligence,
fraud,  interference with prospective business advantage,  breach
of implied warranty, and breach of the covenant of good faith and
fair dealing.  While the complaint on its face alleges facts that
generally suggest the possibility of impropriety, such as Tomters
extensive  contact  with Toram during the  proposal  process  and
Tomters failure to disclose to his superiors his close friendship
with Torams owner,  it does not specifically describe any actions
by  Tomter  that  are  patently improper,  nor  does  it  provide
specific  factual support for its conclusory allegations  of  bad
faith  misconduct.   Even  applying the charitable  standard  for
dismissal under Rule 12(b)(6), which requires us to look  at  the
complaint in the light most favorable to J&S and ask if there  is
any  conceivable  set  of circumstances that,  if  proved,  could
support  a  viable claim, it seems difficult to glean facts  from
the  complaint alone supporting a viable claim against Tomter for
any  intentional impropriety involving bad faith actions  outside
the scope of his official duties.
          But the circumstances in this case militate in favor of
a  somewhat  broader  perspective.   As  already  indicated,  the
superior court did not dismiss J&Ss complaint against either  the
department or Tomter on the ground that it failed to state  facts
capable  of  sustaining a viable claim.  To  the  contrary,  even
though the court had allowed J&S an opportunity for discovery  in
order  to  develop additional evidence supporting its claim,  and
even  though  J&S  had  addressed some of this  evidence  in  its
arguments   before  the  superior  court,  the  court  ultimately
dismissed  the  case as to both defendants on  the  narrow  legal
theory  that  the  procurement codes exclusive  remedy  provision
categorically barred J&S from maintaining its suit.  In spite  of
the  parties opportunity for discovery, then, this narrow  ground
for  dismissal gave J&S no reason to move to amend its  complaint
to  incorporate newly discovered facts to flesh out the  original
complaints  bare-boned allegations.  Since it seems likely  under
these circumstances that J&S would have been entitled  and  might
still  be  entitled   to  amend  its  complaint  before  a  final
dismissal  for  failure to state a claim,  we  think  that  basic
fairness requires us to judge the sufficiency of the complaint on
appeal  by considering not just the facts recited in the original
complaint,  but all newly discovered facts in the superior  court
record that J&S might have included in an amended complaint.25
          Considering this slightly expanded universe of facts as
if  it  were  true and drawing all reasonable inferences  arising
from those facts in favor of J&S, we find it conceivable that the
complaint  sets  forth allegations of fact  consistent  with  and
appropriate to some enforceable cause of action.26  Or stating the
          proposition conversely, we cannot rule out the possibility of a
viable claim.
          Specifically,  J&S  alleges facts tending  to  indicate
that  Tomter displayed animosity toward J&S, went out of his  way
to  prevent  the  company from winning the  lease,  and  actively
helped  its  competitor, Toram, succeed.  Both Janet  Burts,  the
vice  president  of  an aviation company that  had  supplied  the
department  in the past, and her husband Doug Burts, a department
employee who sat on the RFP review committee, stated that  Tomter
had  openly disparaged J&S and had expressed reluctance to  award
the  contract to it, describing it as a pain in the ass.   Toram,
in  turn, was co-owned by a close personal friend of Tomter, Russ
Torrison,  who,  after  being contacted  by  Tomter,  formed  the
company  with  another  individual for the  specific  purpose  of
responding to the RFP.  Neither Torrison nor his co-owner had any
prior experience leasing aircraft.  During the course of the  bid
evaluation process, Tomter repeatedly communicated with Torrison.
Tomter  never  informed his superiors in the  department  of  his
friendship or communications with Torrison.  More important, Doug
Burts  also provided deposition testimony suggesting that  Tomter
had  made  arrangements to receive kickback payments from  Toram:
According  to Burts, Tomter had said that Burts could  expect  to
receive money from Toram if Toram was awarded the contract.
          When  viewed  in totality and accepted as  true,  these
allegations could reasonably suggest the existence of a scheme to
favor  Toram  in  return  for  personal  payments  to  Tomter   a
fraudulent  arrangement that would fall  well  beyond  the  outer
limits  of  Tomters official duties.  Bad faith actions  of  this
kind could also potentially fall outside the protections afforded
by  qualified, or good-faith, official immunity.  And the alleged
misconduct  could also conceivably fit into one or  more  of  the
specific causes of action alleged in J&Ss complaint.
          For  example,  the complaint specifically alleges  that
Tomters actions amounted to an intentional interference with J&Ss
prospective  economic  advantage.  We have previously  recognized
this  tort  in  Alaska,  holding that a person  who  is  pursuing
reasonable and legitimate prospects of entering into an  economic
relationship  with  another is protected  from  a  third  persons
wrongful  conduct  that aims to disrupt that relationship.27   To
make  out  a  prima facie case for this tort, the plaintiff  must
          (1)  the  existence of a prospective business
          relationship  between  the  plaintiff  and  a
          third  party; (2) knowledge by the  defendant
          of  the  prospective relationship, and intent
          to  prevent its fruition; (3) conduct by  the
          defendant  interfering with the relationship;
          (4)  failure  of the prospective relationship
          to  culminate  in pecuniary  benefit  to  the
          plaintiff;  (5)  causation of the  plaintiffs
          damages  by the defendants conduct;  and  (6)
          absence of privilege or justification for the
          defendants action.[28]
          This  cause  of  action provides a  potentially  viable
          theory to address J&Ss chief complaint about Tomter: that Tomter,
motivated  by  animosity against J&S and a  desire  for  personal
financial  gain,  abused his position as  a  participant  in  the
procurement  process to prevent J&S from forming a contract  with
the state.29  Alternatively, the same allegations might fairly be
characterized   as   fitting  J&Ss  claim   of   an   intentional
misrepresentation  also alleged in the complaint.  In ruling that
J&S  advances  sufficient  facts under these  theories  to  avoid
dismissal  under Rule 12(b)(6), we need not definitively  endorse
or  approve  either theory; rather, it suffices to conclude  that
neither  the department nor Tomter has authoritatively ruled  out
the  possibility that J&S might prevail under one  or  both.   We
thus  decline to hold that dismissal for failure to state a claim
provides  an alternative basis for affirming the superior  courts
judgment against J&S as to Tomter.
     D.   Attorneys Fees
          J&S separately challenges the superior courts award  of
attorneys  fees to the department.  Our decision to  reverse  the
dismissal as to Tomter requires us to vacate the award of fees to
the  department, even though we affirm the order  dismissing  the
complaint  as to the department.  Because this case is  a  single
action  against two defendants, dismissal as to only one  of  the
two  defendants cannot support entry of a final judgment for  the
other  in the absence of an express finding of good cause  for  a
partial judgment under Alaska Civil Rule 54(b).  The existence of
cause to enter such a judgment must be decided on remand.  And in
any  event,  because Tomter is no longer a prevailing party,  the
award  to  the department will likely need to be reconsidered  in
any  event,  to eliminate assessing costs against  J&S  for  time
spent by the state in defending Tomter.
          The  exclusive remedy provision of the procurement code
bars J&Ss claims against the department, but does not necessarily
bar  J&Ss  claims against Tomter as an individual.   And  as  the
record  currently stands, failure to state a viable claim against
Tomter   does  not  provide  a  proper  alternative  ground   for
dismissal.   We  therefore AFFIRM the superior  courts  order  of
dismissal  as to the department but REVERSE the dismissal  as  to
Tomter and REMAND for further proceedings on that claim after J&S
is  given  an opportunity to amend its complaint.  We VACATE  the
award  of  attorneys  fees as premature and  REMAND  for  further
proceedings on that issue in keeping with this opinion.
     1     Alternatively,  J&S contends that the  superior  court
erred  in declining to reconsider its ruling in response to  J&Ss
Rule 60(b) motion for relief from judgment. Our holding that  the
superior  court  erred  in  ruling  that  the  exclusive   remedy
provision  bars  J&S from pursuing its complaint  against  Tomter
makes it unnecessary to consider J&Ss alternative argument.

     2     Kollodge  v.  State, 757 P.2d 1024, 1026  n.4  (Alaska

     3     Id.  at  1026 (quoting 2A J. Moore & J. Lucas,  Moores
Federal Practice  12.07 [2.-5], at 12-63 (1986)).

     4     Linck  v. Barokas & Martin, 667 P.2d 171, 173  (Alaska

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

     6     J&L  Diversified  Enters.,  Inc.  v.  Municipality  of
Anchorage, 736 P.2d 349, 351 (Alaska 1987).

     7    AS 36.30.

     8    AS 36.30.685(a).

     9    AS 36.30.585.

     10    Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d
1095, 1098 (Alaska 1988).

     11    King v. Alaska State Hous. Auth., 633 P.2d 256 (Alaska
1981) (holding later codified as AS 36.30.685, .690).

     12    Id. at 261-63.

     13    140 F. Supp. 409 (Ct. Cl. 1956).

     14    King, 633 P.2d at 263 n.7.

     15    Id. at 260-61.

     16    Id. at 263.

     17    AS 36.30.690.

     18    AS 09.50.250.

     19    AS 36.30.690.

     20    King, 633 P.2d at 262.

     21    Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 159-
60 (Alaska 1987).

     22    Id.

     23    See id.

     24     See  Shooshanian v. Wagner, 672 P.2d 455, 461 (Alaska

     25     Alaska Civil Rule 15(a) allows parties to amend their
pleadings by leave of the court after the initial time period set
out  in  the rule expires and commands that leave is to be freely
granted  when  justice so requires.  Prentzel v. State,  Dept  of
Pub.  Safety, 53 P.3d 587, 590-91 (Alaska 2002) (Typical  reasons
for  denying  leave  to  amend  include  the  added  expense  and
increased burden the opposing party is likely to face as a result
of  the  amendment.  But a party should be permitted to amend  if
there  is  no  showing  that  amending would  cause  injustice.).
Amendment  to  the pleadings may be proper on remand.   Swift  v.
Kniffen,  706  P.2d  296, 305 n.11 (Alaska 1985)  (directing  the
trial  court  to entertain a motion by plaintiffs  to  amend  the
complaint  to  include  a new cause of action  based  on  a  case
decided while the appeal was pending) (citing City of Columbia v.
Paul  N.  Howard  Co.,  707 F.2d 338, 341  (8th  Cir.  1983)  (An
amendment  can be proper after remand to the district court  even
if  the  claim was presented for the first time on appeal or  had
not been presented to the district court in a timely fashion.)).

     26     Linck v. Barokas & Martin, 667 P.2d 171, 173  (Alaska

     27     Ellis v. City of Valdez, 686 P.2d 700, 707-08 (Alaska

     28    Hayes v. A.J. Assocs., Inc., 960 P.2d 556, 571 (Alaska

     29     We note that in an analogous setting, the Connecticut
Supreme  Court  has  recognized  that  a  real  estate  developer
alleging deliberate misconduct by a planning board for denial  of
his  subdivision proposal might have a potentially viable  action
against  individual  board  members on  a  claim  of  intentional
interference  with  business relations.  See Kelley  Prop.  Dev.,
Inc. v. Town of Lebanon, 627 A.2d 909, 910, 923 n.30 (Conn. 1993)
(relying in relevant part on Multi-Service Contractors,  Inc.  v.
Town of Vernon, 477 A.2d 653, 655-56 (Conn. 1984) (stating that a
tort  claim  under  this theory could proceed  if  the  plaintiff
alleged  sufficient facts to show bad faith by  officials,  which
would effectively render them third parties to the contract  they
were  charged  with  procuring for the  town  in  their  official
capacities)).   Cf.  Conway Corp. v. Constr.   Engrs,  Inc.,  782
S.W.2d  36,  40-41  (Ark.  1989)  (recognizing  that  individuals
contracting  on behalf of a municipal corporation could  be  sued
individually for their interference with the contract  they  were
employed  to  secure,  even though a tort  action  could  not  be
maintained against the municipal corporation).

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