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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Afognak Joint Venture v. Old Harbor Native Corp. (01/26/2007) sp-6093

Afognak Joint Venture v. Old Harbor Native Corp. (01/26/2007) sp-6093, 151 P3d 451

     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

AFOGNAK JOINT VENTURE, )
) Supreme Court No. S- 11912
Appellant, )
) Superior Court No.
v. ) 3AN-97-3380 CI
)
OLD HARBOR NATIVE CORP., )
and AKHIOK-KAGUYAK, INC., ) O P I N I O N
)
Appellees. ) No. 6093 - January 26, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances: R. Collin Middleton  and  Robert
          J.  Sato, Middleton & Timme, P.C., Anchorage,
          for Appellant.  Matthew D. Jamin, Matthew  R.
          St. John, and Karen L. Lambert, Jamin Schmitt
          St. John, Kodiak, for Appellees.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          This  is the second appeal in a dispute between various
Kodiak   area  Native  corporations  over  ownership  of   claims
resulting  from the Exxon Valdez oil spill.  The Old  Harbor  and
Akhiok-Kaguyak  corporations belonged to a joint  venture,  along
with  eleven  other corporations, which they formed in  order  to
receive land on Afognak Island from the federal government.   Old
Harbor  and Akhiok withdrew from the joint venture shortly  after
the  Exxon  Valdez oil spill of March 24, 1989.  Upon withdrawal,
they  received shares of joint venture land and paid their shares
of the joint ventures debts in satisfaction of all claims against
the  joint  venture.  In the 1990s the remaining members  of  the
joint venture claimed oil spill settlement funds, including funds
for  damage  to  the land partitioned to Old Harbor  and  Akhiok,
which the joint venture then refused to share with Old Harbor and
Akhiok.  The two corporations sued the joint venture to recover a
proportionate share of the Exxon claim.  The superior court ruled
in favor of Old Harbor and Akhiok.  The joint venture appeals.
          Because   the   superior  court  correctly   determined
ownership of the Exxon claim and correctly awarded a share of the
Exxon  claim  to  Old Harbor and Akhiok, and  because  the  joint
ventures  remaining arguments are without merit,  we  affirm  the
superior courts judgment that the Exxon claims should be  divided
between  the parties.  We remand to the superior court  for  that
division.
II.  FACTS AND PROCEEDINGS
     A.   Events leading up to Old Harbor I1
          Thirteen   Kodiak-area   Native   Corporations   (joint
venturers)  formed  the Afognak Joint Venture (Joint  Venture  or
AJV)  in  1982  in  order  to  receive  lands  from  the  federal
government, as provided in Public Law 96-487  1427(c) (1980):
          The Secretary of the
                              Inter
                              ior
                              shall
                              conve
                              y the
                              surfa
                              ce
                              estat
                              e  on
                              Afogn
                              ak
                              Islan
                              d [as
                              defin
                              ed in
                              an
                              earli
                              er
                              secti
                              on] .
                              .   .
                              to  a
                              joint
                              ventu
                              re
                              provi
                              ding
                              for
                              the
                              devel
                              opmen
                              t  of
          the
                              surfa
                              ce
                              estat
                              e . .
                              .   .
                              The
                              conve
                              yance
                              shall
                              be
                              made
                              as
                              soon
                              as
                              pract
                              icabl
                              e
                              after
                              there
                              has
                              been
                              filed
                              with
                              the
                              Secre
                              tary
                              of
                              the
                              Inter
                              ior a
                              duly
                              execu
                              ted
                              joint
                              ventu
                              re
                              agree
                              ment
                              with
                              provi
                              sions
                              for
                              shari
                              ng of
                              and
                              entit
                              lemen
                              ts in
                              costs
                              and
                              reven
                              ues
                              of
                              such
                              ventu
                              re as
                              provi
                              ded
                              in
                              this
                              subse
                              ction
                              [so
                              that
                              each
                              corpo
                              ratio
                              ns
                              land
                              share
                              is
                              based
                              on
                              its
                              popul
                              ation
                              and
                              acrea
                              ge].
                              The
                              conve
                              yance
                              shall
                              not
                              indic
                              ate
                              the
                              respe
                              ctive
                              inter
                              ests
                              of
                              each
                              of
                              the
                              corpo
                              ratio
                              ns in
                              the
                              surfa
                              ce
                              estat
                              e
                              conve
                              yed
                              but
                              such
                              inter
                              ests
                              shall
                              be as
                              provi
                              ded
                              in
                              this
                              subse
                              ction
                              which
                              shall
                              be
                              incor
                              porat
                              ed by
                              refer
                              ence
                              into
                              the
                              conve
                              yance
                              .
          One of the joint venturers, Afognak Native Corporation,
managed  the  Joint  Venture.  According  to  the  Joint  Venture
agreement, the Joint Venture had several purposes: to receive the
lands  from the federal government, to develop them in  the  best
interests of the joint venturers, and to manage fish and wildlife
as  required  by  the  conveyance.  The Joint  Venture  agreement
indicated  that the joint venturers intended to own the  property
as  tenants  in  common and not as partners.  However  the  Joint
Venture,  rather than the individual venturers, had authority  to
sell  Joint  Venture property and to determine when to distribute
revenue to the venturers.
          The oil tanker Exxon Valdez hit Bligh Reef on March 24,
1989,  spilling  eleven million gallons of  oil  into  the  North
Pacific; some of this oil reached Joint Venture land at some time
between  March 31, 1989 and the end of the summer  of  1990.   In
April  1989  Akhiok-Kaguyak Corporation  and  Old  Harbor  Native
Corporation  (the  Corporations) gave notice of their  withdrawal
from  the  Joint  Venture.  At the time of their withdrawal,  the
Corporations owned an undivided 18.37% interest in both the  land
and  net assets of the Joint Venture (Old Harbor owned 12.38% and
Akhiok  owned 5.99%).  According to the Joint Venture  agreement,
the  Corporations immediately ceased to be members of  the  Joint
Venture  when  they gave notice of their withdrawal;  their  land
share  was calculated according to values on the dates  of  their
withdrawals  and  their shares of Joint Venture net  assets  were
calculated  from the last day of the month immediately  preceding
their withdrawal, i.e., March 31, 1989.
          The  parties negotiated a partition of land and  assets
and  a  release,  which they signed in July  1991.   The  release
indicates   that   the   partition   agreement   completely   and
satisfactorily  fulfills all of [the Joint Ventures]  obligations
to  the  Corporations,   including  the  accounting  and  payment
required  in   6.01 of Exhibit C to the Joint Venture  agreement:
The  Joint  Venture shall be obligated to pay to the  withdrawing
joint venturer its percentage interest in the net assets [of  the
Joint  Venture]  within one year of the date  of  the  notice  of
withdrawal . . . .  The net assets of the Joint Venture  are  the
assets  less  the  liabilities  of the  Joint  Venture  excluding
commercial timber, land and value of improvements computed on  an
accrual basis.  As part of the settlement and release, Old Harbor
paid  $128,941  and Akhiok paid $62,429 as their  shares  of  the
Joint Ventures negative value.2
          The  Joint  Venture applied for Exxon spill  settlement
funds  in  1993 from Alyeska Pipeline Service Company  and  later
from Exxon, funds that included amounts based on the land already
ceded   to  the  Corporations.   The  Corporations  requested   a
proportionate  share  of the settlement in 1996,  but  the  Joint
Venture  denied the request.  Other members of the Joint  Venture
who  withdrew after the Joint Venture filed its Exxon claims were
to  receive shares of the oil spill damage claims based on  their
respective  ownership  interests  in  the  Joint  Venture.    The
Corporations sued the Joint Venture in September 1997, claiming a
portion of the Exxon claims.3  The superior court granted summary
judgment  to  the  Joint Venture based on the  release,  and  the
Corporations appealed.4
     B.   Summary of Old Harbor I
          In  Old Harbor I we reversed the superior courts  grant
of  summary judgment to the Joint Venture and remanded  the  case
for  further  proceedings.5  In Old Harbor I  we  held  that  the
members  of  the  Joint Venture continued to  owe  each  other  a
fiduciary   duty  during  the  period  between  the  Corporations
withdrawal  in  late April 1989 and the partition in  July  1991.
During  that  time,  we  held, the Joint  Venture  stood  in  the
position of a trustee with respect to the Ventures assets because
the  Corporations were no longer members of the Joint Venture but
were  joint owners of the assets.6  The Joint Ventures  fiduciary
duty  included a duty of disclosure regarding the status  of  the
Exxon  claim.7   We also held that there was a genuine  issue  of
material fact as to whether the parties made a mutual mistake  of
fact when they omitted the Exxon claim from the accounting of the
Joint Ventures assets during the partition.8
          The  three elements of mutual mistake of fact  meriting
reformation are: (1) the mistake relates to a basic assumption of
the contract; (2) the mistake has a material effect on the agreed
exchange; and (3) the party seeking relief does not bear the risk
of  mistake.9  Regarding the first element, we concluded that the
alleged  mistake related to a basic assumption of  the  contract,
since  the settlement agreements goal was to resolve all  of  the
[Joint  Venture] and [the Corporations] rights arising from  [the
Corporations]  withdrawal from the Joint Venture, which  included
rights to the Exxon claim.10  For the second element, we concluded
that  the  mistake  was material to the transaction.11   For  the
third,  we  stated  that  nothing  in  the  settlement  agreement
transferred the risk of a mutual mistake to the Corporations .  .
.  .12   Since  we were reviewing summary judgment to  the  Joint
          Venture, we viewed all the evidence in the light most favorable
to  the Corporations.  That included Old Harbors evidence that it
expected  as  early  as  February 1990 to  receive  about  twelve
percent  of the Exxon claim and Akhioks evidence that  the  Joint
Venture never informed it during the partition negotiations  that
it intended to retain all of the Exxon claims.13
          In  Old Harbor I we noted that the trial court had  not
made a finding of fact regarding the date of accrual of the Exxon
claim.14   Therefore, it was impossible to determine whether  the
Joint  Ventures duty to disclose the Exxon claim arose before  or
after   the  Corporations  withdrawal  from  the  Joint  Venture.
However,  we held that regardless of when the Exxon claim  arose,
the  Joint Ventures fiduciary duty of disclosure continued  until
partition,  and  the  Joint Venture had  a  duty  to  inform  the
Corporations of the status of the claim.15  We also noted that in
light  of  this  holding we did not need  to  resolve  a  further
factual  conflict between the parties: They both claimed  to  own
the  land  at  the  time the claims accrued, the Corporations  as
tenants  in  common  with other joint venturers,  and  the  Joint
Venture as sole title holder.16
          Consequently, the questions for the superior  court  on
remand  were:  (1) Given the existence of a duty to disclose  the
status  of the Exxon claim up until the July 1991 partition,  did
the Joint Venture discharge it?  (2) Given the parties failure to
address  the  Exxon  claim in the partition  agreement,  did  the
parties make a mutual mistake of fact meriting reformation of the
agreement?
     C.   Summary of Proceedings in the Superior Court
          After  remand from Old Harbor I and before  trial,  the
parties stipulated to several facts, including the following:
          No  oil  from  the  Exxon  Valdez  Oil  Spill
          contacted  AJV  land on or before  March  31,
          1989, because the oil had not yet reached the
          Kodiak Island Group.
          
          For  the AJV lands that were oiled, the  vast
          amount of the oil was not present by the  end
          of the summer of 1990.
          During a bench trial before Superior Court Judge Sen K.
Tan, the parties presented live testimony from ten witnesses, and
submitted   depositions  from  eight  witnesses,  and  introduced
approximately  370 exhibits.  The superior court found  that  the
Joint  Venture members held the land as tenants in  common.   The
superior  court also relied upon our observation in Old Harbor  I
that, although the Corporations ceased to be members of the Joint
Venture  upon  notice  of  withdrawal,  they  continued  to   own
interests in Joint Venture land and other assets.17
          The superior court found that, although the parties did
not think about the [Exxon] claim in the context of the partition
discussions  and  the documents that finalized  their  agreement,
they  were certainly aware of a potential oil spill damage  claim
during  the period between withdrawal and partition.   The  court
also  found that the parties knew that the Joint Venture  was  an
absent  class  member  in the Exxon suit,  although  the  parties
          dispute whether the Joint Venture found out about its class
membership  before partition.18  Finally, the  court  found  that
within  a year of the Corporations withdrawal, the Afognak Native
Corporation  (whose  managers were the same people  managing  the
Joint  Venture)  demonstrated that it felt its  own  land  damage
claim  had  value by participating in discovery with other  class
attorneys and modifying its direct action claims against Exxon to
include  damages for the direct oiling of its land.  (The Afognak
Native   Corporation  had  originally  claimed  damage  only   to
archaeological sites during oil-spill cleanup.)
          The  superior court noted that [t]he [Exxon] oil  spill
case  extended  the notions of damages that could  be  recovered.
This  was because land owners such as the Joint Venture were  not
required to show actual damage.  Under the distribution plans  of
both  the  Alyeska  and Exxon settlements, a claimants  land  was
valued  on  the  day of the oil spill (March 24, 1989),  and  its
value  before the spill was compared to its value after the spill
on that day.  Using March 24 as the date for assessing damage was
simply   a   convenience,  since  any  distribution  plan   tying
recoveries to when a property was actually first oiled would have
been an administrative nightmare.  Additionally, a landowner  did
not  have to show that its land had actually been oiled; the land
only  had to be located within the oil spill area, which included
all of Afognak Island.19  Thus a landowner claim such as the Joint
Ventures  had only two elements: ownership of the land  on  March
24, 1989 and location in the oil spill area.
          The  superior court applied the three-part  mistake  of
fact test set out in Old Harbor I, and concluded that the parties
made  a  mutual  mistake  of fact in not  realizing  .  .  .  the
existence  of  the oil spill damages claim [during the  partition
negotiations].  Holding that this mistake merited reformation  of
the  settlement agreement, the superior court awarded  18.37%  of
the  Exxon  claim to the Corporations.  In light of this  ruling,
the superior court did not reach the issue of breach of fiduciary
duty.
          The Joint Venture now appeals.
III. STANDARD OF REVIEW
          We  review  the  superior courts factual  findings  for
clear error.20  We will find clear error only if, after a thorough
review  of  the record, we come to a definite and firm conviction
that a mistake has been made.21
          Questions  of  contract  interpretation  are  generally
questions of law which we review de novo; but fact questions  are
created  when  the meaning of contract language is  dependent  on
conflicting extrinsic evidence.22  We can affirm a decision of the
superior  court on any basis supported by the record.23  Finally,
unless  a  factual  or  legal error  by  the  superior  court  is
inconsistent  with substantial justice, the courts judgment  will
not be disturbed.24
IV.  DISCUSSION
     A.   The  Superior Court Did Not Err when It Determined that
          the Corporations Owned a Portion of the Exxon Claim.
          
          The  Joint  Venture  asserts that the  superior  courts
          judgment should be reversed because it is based on the incorrect
assumption that Old Harbor I  decided who owned the land and  who
owned the claims.  The Joint Venture argues that because of  this
incorrect assumption the superior courts decision lacks  adequate
factual  support.   In response, the Corporations  maintain  that
ownership of the Exxon claim is irrelevant to the superior courts
decision,  since  the  mutual mistake the  parties  made  was  in
failing  to discuss and allocate the Exxon claim even though  the
parties  were operating under an implicit and explicit assumption
that all the parties rights would be resolved.
          Under  Article  VI,  6.01 of Exhibit  C  to  the  Joint
Venture  agreement, the Joint Venture is required to account  for
its  net  assets on an accrual basis as of the last  day  of  the
month  preceding the date of withdrawal.  Because the  withdrawal
was  in April,  the accounting date was therefore March 31, 1989.
Under  the  agreement, the Joint Venture is required to  pay  the
withdrawing  corporation the corporations percentage interest  in
the  Joint  Ventures  net  assets within  a  year  of  notice  of
withdrawal  plus  eighteen percent interest.   According  to  the
Joint  Venture,  the Exxon claims accrued to  the  Joint  Venture
after  the Corporations withdrawal.  Therefore, the Joint Venture
maintains,  the Corporations had no right to share in  the  Joint
Ventures Exxon claims.  The Joint Venture argues that even though
the  only date listed as an eligibility requirement for the Exxon
claim  is  the day of the Exxon spill, March 24, 1989, the  claim
did  not actually accrue until the oil hit the Joint Venture land
sometime after March 31, 1989.
          We  agree  with  the Corporations:   It  is  immaterial
whether  the Exxon claim accrued before or after the Corporations
withdrawal.   If the claim accrued before withdrawal,  it  was  a
Joint  Venture asset subject to distribution to the  Corporations
just like any other asset by virtue of  1.05 of the Joint Venture
agreement:
          All  revenues  (including proceeds  resulting
          from  the disposition or destruction of Joint
          Venture  property) realized  and  all  costs,
          charges  and expenses incurred in  conducting
          Joint Venture business will be distributed or
          shared  by the joint venturers in the  manner
          provided in Section 1427(c) of Public Law 96-
          487   [by   which  the  venturers  individual
          interests  were calculated]. . . . Funds  not
          required for working capital purposes may  be
          distributed  to the joint venturers  at  such
          times as designated by the Board.  Management
          of  the Joint Venture will establish a system
          to  effect  the foregoing, which system  will
          have  as  an  objective the  minimization  of
          working capital operating funds committed  by
          each joint venturer.
(Emphasis added.)
          If the claim accrued after withdrawal, it is covered by
our  decision  in Old Harbor I.  There, we held  that  after  the
Corporations withdrew in April 1989, the Joint Venture  stood  in
the position of a trustee because the Corporations were no longer
members of the Joint Venture but were joint owners of the assets.25
In  other words, the Joint Venture and the Corporations held  the
land and assets as tenants in common between April 1989 when  the
Corporations withdrew and July 1991 when the land and assets were
partitioned.26    Accordingly,  if  the   claim   accrued   after
withdrawal,  it would belong to the Corporations  as  tenants  in
common whose title was held in trust by the Joint Venture.
          For  these reasons, we conclude that the superior court
did  not  err  when it determined that the Corporations  owned  a
portion of the Exxon claim.
     B.   The  Superior  Court  Did Not Err in  Ruling  that  the
          Parties Made a Mutual Mistake of Fact.
          
          The  Joint  Venture  initially  argues  that  its  only
mistake  was in failing to predict at the time of partition  that
in a few years it would have a large Exxon claim.  It argues that
the  parties did not intend to allocate assets of minimal  value,
which  would  have  included  the Exxon  claim  at  the  time  of
partition,  since  the Alyeska and Exxon settlements  were  still
years  away when the Corporations signed the partition  agreement
and  no  one could have predicted that actual damage to the  land
would  not  be  required  for an Exxon claim.   The  Corporations
respond  that,  given the parties knowledge of a potential  claim
during  partition, their real mistake was in failing  to  fulfill
their commitment to consider all the AJVs rights and divide  such
accordingly.
          We agree with the Corporations.  No party claimed to be
unaware  during partition negotiations of other Exxon  claims  or
that  the Joint Venture lands had been oiled.  The Joint Ventures
subjective valuation of the Exxon claim as small or even zero  is
irrelevant27  for,  as we held in Old Harbor  I,  the  settlement
agreement  purported  to resolve all of the [Joint  Venture]  and
[the   Corporations]  rights  arising  from  [the   Corporations]
withdrawal  from  the [Joint Venture]. 28  We conclude  that  the
superior  court  did not err in ruling that the  parties  made  a
mutual mistake of fact.
     C.   The  Superior Court Did Not Err in Dividing  the  Exxon
          Claim Between the Parties.
          
          In Old Harbor I we held that the mutual mistake of fact
alleged  by  the Corporations, if proven, would merit reformation
of  the settlement agreement and release, since it satisfied  the
three-part  test  for  mutual mistake of fact:  (1)  the  parties
failure  to  discuss  the  Exxon  claims  undermined  the   basic
assumption  that  the  release would address  all  of  the  Joint
Ventures assets; (2) the Exxon claims, worth millions of dollars,
were  material  to  the  transaction;  and  (3)  nothing  in  the
settlement agreement transferred the risk of a mutual mistake  to
the Corporations.29
          According  to  the  Joint Venture, reformation  of  the
partition agreement was inappropriate since the parties  did  not
reach  an  agreement on the Exxon claim and  they  did  not  have
identical  views  on  the  claims value  during  their  partition
          negotiations.  The Joint Venture notes that [w]hile the
corporations may have believed AJV land to have been damaged, the
AJV  did  not.  However, the parties did have a common intent  to
account  for  all  of their assets.  The Joint Ventures  argument
that one of the assets was insignificant does not change the goal
of  the  parties  agreement, especially in  light  of  the  Joint
Ventures  fiduciary duty to disclose the status of Joint  Venture
assets   including  the Exxon claim  during the period  following
the  Corporations withdrawal but prior to the completion  of  the
partition process.30
          Nevertheless, upon reexamination of our holding in  Old
Harbor  I,  we note that when using the term reformation  we  may
have misdirected the superior court on terminology, although  not
on  the  law.  According to the Restatement (Second) of Contracts
155, reformation is available to correct a mutual mistake of fact
when a contract fails to express the actual agreement between the
parties.31   That  is, reformation would be strictly  appropriate
where  the  parties  had actually agreed to apportion  the  Exxon
claim and had merely failed to record it.32  In the present case,
by  contrast,  the  superior court correctly concluded  that  the
parties  mistake consisted of their failure to discuss the  Exxon
claim  at all.  Here the courts power to reshape the contract  is
expressed more clearly by  158 of the Restatement.  According  to
that  section,  in  a  case  of mistake  where  neither  damages,
avoidance  of  the contract, reformation, restitution,  or  other
remedies  provided in Chapter 6 of the Restatement are available,
the  court  may exercise its equitable power to grant  relief  on
such   terms   as   justice  requires.33   Relief   under   these
circumstances  may  include  supplying  a  term  to  the  parties
agreement.34   We  have previously expressed our  willingness  to
imply  a  contract  term in order to conform a  contract  to  the
evident  intent  of  the parties.35  In this  case,  the  parties
clearly  intended, and the Joint Venture was required (on account
of its fiduciary duty towards the Corporations and by Article VI,
6.01 of Exhibit C to the Joint Venture agreement), to account for
and  apportion  all  of the Joint Ventures assets.   By  awarding
18.37% of the Joint Ventures Exxon claim to the Corporations  the
superior court gave effect to the reasonable expectations of  the
parties.
          While  we conclude that the superior court did not  err
in  dividing  the Exxon claim between the parties,  as  we  noted
above  the court had the power to grant relief on such  terms  as
justice   requires.36   Because  our  earlier  remand  may   have
incorrectly  focused  the  courts and the  parties  attention  on
reformation under  155, it is unclear whether the superior  court
was  aware  of  this  power and whether the parties  had  a  full
opportunity  to  litigate all issues under it.   Accordingly,  we
remand for the limited purpose of allowing the superior court  to
consider  whether the Joint Venture is entitled to a set-off  for
any  costs it incurred in obtaining compensation under the  Exxon
claims.37
     D.   The  Joint  Ventures Remaining Arguments on Appeal  Are
          Without Merit.
          
          The Joint Venture argues that the Corporations acted in
          bad faith by not informing the Joint Venture of the Corporations
opinion  that the Exxon claim had value.  According to the  Joint
Venture, the Corporations knowledge of the claims was superior to
the  Joint Ventures because Old Harbor, representing a  class  of
landowners  that included the Joint Venture, filed  suit  against
Exxon during or just before the period of partition negotiations.
But  the superior court found that all of the parties were  aware
of  potential  claims.  The evidence supports this finding.   The
Joint  Venture  also  alleges numerous factual  mistakes  in  the
superior  courts findings.  However, the Joint Venture  does  not
assert  that  any  of these alleged mistakes is material  to  the
outcome  of the case.  In these circumstances, there is no  basis
for reversal.38
V.   CONCLUSION
          The  superior  court correctly determined ownership  of
the  Exxon  claim  and  the  nature of  the  parties  mistake  in
partitioning  their  assets.  Therefore, we AFFIRM  the  superior
courts  judgment that the Exxon claims should be divided  between
the  parties.  We REMAND so that the superior court may  fix  the
Corporations  proportionate share of the Exxon claims.   At  that
time the court may consider whether the Joint Venture is entitled
to offset any costs it bore in pursuing the Exxon claims.
_______________________________
     1     Old  Harbor Native Corp. v. Afognak Joint Venture,  30
P.3d 101 (Alaska 2001) (Old Harbor I).

     2    Id. at 104.

     3    Id.

     4    Id.

     5    Id.

     6    Id. at 106.

     7    Id. at 107.

     8    Id. at 107-08.

     9     Id. at 108 (quoting Stormont v. Astoria Ltd., 889 P.2d
1059, 1061 (Alaska 1995)).

     10    Id.

     11     Id.  The Joint Venture valued its share of the  Exxon
claims, including punitive damages, at about $22 million.  Id. at
104.

     12    Id. at 108 (emphasis in original).

     13    Id.

     14    Id. at 106 n.17.

     15    Id. at 106.

     16    Id. at 109 n.31.

     17    See id. at 106.

     18    In February 1991, six months before the parties signed
the  partition  agreement, Superior Court  Judge  Brian  Shortell
certified a class of real property owners affected by the  spill,
which  included  the Joint Venture land.  Old Harbor  represented
the class.

     19    In 1994 the U.S. District Court required as an element
of  recovery  that oil actually reached a property  owners  land.
However,  neither the Alyeska settlement nor the Exxon settlement
required this, in Alyeskas case because it pre-dated the district
courts  order, and in Exxons because the parties settled and  the
court later approved a distribution plan like Alyeskas.

     20    Alaska R. Civ. P. 52(a).

     21    Hall v. TWS, Inc., 113 P.3d 1207, 1210 (Alaska 2005).

     22    Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000
n.1 (Alaska 2004).

     23     Hall,  113 P.3d at 1210 (citing Rausch v. Devine,  80
P.3d 733, 737 (Alaska 2003)).

     24     Alaska R. Civ. P. 61.  See also Fairbanks North  Star
Borough  v.  Rogers  & Babler, 747 P.2d 528,  531  (Alaska  1987)
([E]ven  if  a finding of fact or conclusion of law is erroneous,
the  mistake  is  not  grounds for reversal  if  the  finding  or
conclusion is not necessary to the courts ultimate decision.).

     25     Old  Harbor  I, 30 P.3d at 106.  However,  the  court
explicitly  declined  to  determine the nature  of  the  interest
before withdrawal.  Id. at 109 n.31.

     26    See AS 34.15.130:

          Except   as   provided  in  AS   34.15.110(b)
          [presumption  of  tenancy in  entirety  where
          husband and wife hold title] and AS 34.77.100
          [community property trust], persons having an
          undivided  interest  in  real  property   are
          considered tenants in common.
          
(Emphasis added.)

     27     The claim is also suspect, considering the fact  that
within  a  year  of  the partition, the people who  managed  both
Afognak Native Corporation and the Joint Venture modified Afognak
Native  Corporations claim against Exxon to include  damages  for
oiling of the latters land.

     28    30 P.3d at 108.

     29    Id.

     30    Id. at 107.

     31    Restatement (Second) of Contracts  155 (1979).

     32     Id.  at  cmt.  b.  See also Restatement  (Second)  of
Contracts,  ch.  6,  introductory note at  379  (Where,  however,
because of a mistake of both parties as to expression the writing
fails  to express an agreement that they have reached previously,
the  appropriate relief ordinarily takes the form of  reformation
of the writing to make it conform to their intention.).

     33     Restatement (Second) of Contracts  158(2).  See  also
Restatement (Second) of Contracts,ch. 6, introductory note at 381
(The rules governing [mistake] have traditionally been marked  by
flexibility  and  have conferred considerable discretion  on  the
court.).

     34    Restatement (Second) of Contracts  158 cmt. c.

     35     See, e.g., Ellingstad v. State, Dept of Natural Res.,
979  P.2d  1000, 1008 (Alaska 1999) (holding that where  contract
silent  court  may  supply  reasonable term  to  fulfill  parties
expectations).  See also Rego v. Decker, 482 P.2d  834,  837  n.8
(Alaska  1971) (stating that apparent difficulties of enforcement
due  to  uncertainty of expression often disappear  in  light  of
courageous common sense).

     36    Restatement (Second) of Contracts  158(2).

     37     See  Edwards v. Alaska Pulp Corp., 920 P.2d 751,  754
(Alaska  1996) (noting that under common fund doctrine a litigant
. . . who recovers a common fund for the benefit of persons other
than  himself or his client is entitled to a reasonable attorneys
fee  from  the  fund  as  a whole).  Accord  Quinn  v.  State  of
California,  539  P.2d 761, 764 (Cal. 1975)  ([O]ne  who  expends
attorneys fees in winning a suit which creates a fund from  which
others  derive  benefits, may require those passive beneficiaries
to bear a fair share of the litigation costs.).

     38     Fairbanks North Star Borough v. Rogers & Babler,  747
P.2d  528,  531  (Alaska 1987) ([E]ven if a finding  of  fact  or
conclusion  of law is erroneous, the mistake is not  grounds  for
reversal  if  the finding or conclusion is not necessary  to  the
court's ultimate decision.).

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