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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenai Chrysler Center, Inc. v. Denison (09/21/2007) sp-6167

Kenai Chrysler Center, Inc. v. Denison (09/21/2007) sp-6167, 167 P3d 1240

     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,


an Alaskan Corporation, ) Supreme Court Nos. S-11688/S-11707
AGENCY, INC., a Michigan ) Superior Court No. 3KN-02-953 CI
Corporation, )
Appellants/Cross-Appellees, )
v. ) O P I N I O N
DOROTHY and MICHAEL ) No. 6167 September 21, 2007
DENISON, as guardians of )
Appellees/Cross-Appellants. )
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances: Dennis R. Acker, Anchorage,  for
          Appellants/Cross-Appellees.  Thomas A. Dosik,
          Disability  Law Center of Alaska,  Anchorage,
          for Appellees/Cross-Appellants.

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

          BRYNER, Chief Justice.
          MATTHEWS, Justice, dissenting in part.

          Kenai  Chrysler  Center, Inc.,  sold  a  car  to  David
Denison, not knowing that David was developmentally disabled  and
subject  to  the  legal guardianship of his  parents.   When  the
Denisons  tried to return the car and insisted that the  contract
was  void,  Kenai Chrysler refused to take it back  and  demanded
restitution  to  rescind the contract.  The Denisons  sued  Kenai
Chrysler1 and won an award of treble damages under Alaskas Unfair
Trade  Practices Act.  On appeal, Kenai Chrysler  challenges  the
jury verdict and various rulings made by the superior court.  The
Denisons  cross-appeal, challenging the superior courts award  of
attorneys fees and its failure to impose sanctions against  Kenai
Chrysler.   We find no merit in the parties arguments and  affirm
the superior courts judgment.
     A.   Facts
          David  Denison is a developmentally disabled young  man
who  has  been under the legal guardianship of his parents  since
1999,  when he turned eighteen.  In October 2002 David was living
in  his  own  apartment, but his parents strictly controlled  his
finances.  They visited him at least once each week to make  sure
he  had a clean and safe place to live and was budgeting his food
money  properly.   They also visited him socially  several  times
every week.   They spoke with David nearly every day.
          The  Denisons first learned that David wanted to buy  a
car  when  David called his father, Michael, from Kenai  Chrysler
and  asked him to cosign for a used car; David did not  tell  his
father  where he was when he called.  Michael refused to  cosign.
The  next  day,  David again tried to purchase a car  from  Kenai
Chrysler.   This time, he was trying to buy a new  car,  a  Dodge
Neon, which he could finance without a cosigner. David called his
mother,  Dorothy,  to ask for money for a down payment.   Dorothy
refused  and  told  him not to buy a car.  She assumed  her  word
would  be  final  because she did not realize  that  David  could
obtain any appreciable amount of money with his debit card.
          David  used his debit card and bought the Neon.   Kenai
Chrysler charged $16,614 for the car and $945 for the dealerships
extended service plan.  With additional charges, fees, and taxes,
the  total  price  came to $17,802.  Kenai  Chrysler  gave  David
credit  for trading in his 1994 Pontiac Grand Am, and  applied  a
$2,000 factory rebate to the down payment, which allowed David to
buy the new Neon with only $500 in cash.  Kenai Chrysler financed
the remaining $12,851.77 at 11.99% APR for five years.
          One  or  two  days  after David  signed  the  contract,
Dorothy  came  to  Kenai  Chrysler with David  and  informed  the
salesman who had sold David the car and a Kenai Chrysler  manager
that  David  was under the legal guardianship of his parents  and
had  no legal authority to enter into a contract to buy the Neon.
Dorothy  showed the manager Davids guardianship papers and  asked
him  to  take  back the car.  The manager refused;  according  to
Dorothy, he told her that Kenai Chrysler would not take back  the
car,  and that the company sold cars to a lot of people who arent
very smart.  Dorothy insisted that the contract was void, but the
Kenai  Chrysler manager ignored her and handed the keys to  David
          over Dorothys objection.  David drove off in the new car.
Dorothy  contacted Duane Bannock, the general  manager  of  Kenai
Chrysler,  the  next  day;  he told her  that  he  had  seen  the
guardianship  papers, but he still thought that the contract  was
valid and that David was bound by it.
          A  couple of days after Kenai Chrysler gave David  back
the  keys,  David  damaged the Neon in a one-car  accident.   The
Denisons  then managed to get the car away from David and  return
it to Kenai Chrysler, but six days later, when David called Kenai
Chrysler  to ask for his Pontiac back, someone at the  dealership
told him that he could not have it but could pick up his new  car
any  time.  David got a ride to Kenai Chrysler and picked up  the
Neon.   The next day the Denisons were able to convince David  to
return the car to Kenai Chrysler yet again, and this time he left
the car there.
          While   they  were  trying  to  handle  the   immediate
challenge  of returning the Neon to Kenai Chrysler and preventing
anyone  there  from  giving it back to David, the  Denisons  also
sought  legal  advice about the validity of the  contract.   They
consulted  the  Alaska  State Association  for  Guardianship  and
Advocacy and the Disability Law Center; advocates at both offices
confirmed  Dorothys belief that the contract was  void.   Michael
Denison  also  contacted  the  court-appointed  investigator  for
Davids  guardianship  case.   The  investigator  contacted  Kenai
Chryslers general manager, Bannock, and advised Bannock that  the
guardianship  did indeed make the contract legally void;  Bannock
refused to listen to the advice.  An advocate from the Disability
Law   Center  contacted  Robert  Favretto,  the  owner  of  Kenai
Chrysler,  on the Denisons behalf.  Favretto would not listen  to
the  advocates  advice.  Despite these contacts,  Kenai  Chrysler
sought  no  legal  advice concerning the validity  of  the  sales
contract until November 15, a full month after the sale.
          During  this  time,  Kenai Chrysler  continued  in  its
active  efforts  to enforce the contract.  The  company  promptly
assigned Davids loan to the General Motors Acceptance Corporation
(GMAC)  but  never informed GMAC of Davids incapacity.   It  also
demanded storage fees from David for keeping the Neon on its lot.
It  sold  Davids  Pontiac trade-in on the same day  the  Denisons
brought  the  Neon  back  for the second time,  even  though  the
Denisons were still contesting the sale.
          GMAC  eventually  repossessed the  Neon  and  sold  it,
resulting  in  a  deficiency on the  loan.   After  the  Denisons
attorney  informed GMAC of Davids guardianship,  GMAC  agreed  to
treat  the loan as uncollectible.  Kenai Chrysler paid  GMAC  the
deficiency  without asking whether GMAC intended to  collect  the
     B.   Proceedings
          On  December  4,  2002,  Kenai Chrysler  petitioned  in
probate  court  to modify Davids guardianship order  so  that  it
would allow him to purchase the car.  The company claimed to have
standing  to file the probate petition as a person interested  in
the  wards  welfare.  The probate court denied the  petition  and
awarded  the  Denisons  attorneys  fees,  expressly  finding  the
petition to be frivolous and without good cause.
          The  day  after  Kenai Chrysler filed its  petition  in
probate  court, the Denisons sued the company, seeking a judgment
declaring  that  the  sales contract  was  void  because  of  the
guardianship.  The Denisons also sought an injunction to  prevent
Kenai  Chrysler  from  enforcing the contract,  monetary  damages
under  the  Unfair  Trade  Practices Act  (UTPA),2  and  punitive
damages.    Kenai   Chrysler  counterclaimed   for   restitution,
including reimbursement for paying the deficiency to GMAC.
          The parties filed cross-motions for summary judgment on
Kenai  Chryslers  liability under the UTPA.  The  superior  court
denied both motions, but noted that the Denisons appeared  to  be
entitled  to  summary  judgment on their  claim  to  declare  the
contract void as a matter of law.  The court also observed  that,
even though Kenai Chrysler had cited the Restatement (Second)  of
Contracts  to support the validity of the contract,  the  company
had  failed  to  address the section of the  restatement  dealing
directly  with  the  capacity of persons  under  guardianship  by
reason  of an adjudication of mental illness or defect  to  incur
contractual duties.
          The  Denisons then moved for summary judgment on  their
claim  for  declaratory  relief.   Kenai  Chrysler  requested   a
continuance  for discovery to determine whether the Denisons  had
abandoned  their  guardianship.  The company  characterized  this
issue  as  the key to proving that the Denisons owed restitution.
The  superior  court granted the continuance, but Kenai  Chrysler
failed  to  seek  any appropriate discovery on  the  issue.   The
Denisons  renewed  their motion for summary  judgment  after  the
close  of  discovery,  and Kenai Chrysler did  not  oppose  their
motion.   The  court  granted  the Denisons  motion  for  summary
judgment and declared the sales contract void as a matter of law.
It  also summarily granted judgment against Kenai Chrysler on its
affirmative defenses and counterclaims.
          The  Denisons case proceeded to trial before a jury  on
the  Denisons UTPA claim.  During the trial, the Denisons  sought
to  refresh the memory of a Kenai Chrysler employee by  referring
to  a  rental  rate  quote that Dorothy  had  obtained  from  the
company.   The trial court allowed the Denisons to  rely  on  the
quote for this purpose, even though Kenai Chrysler objected  that
the quote had not been disclosed to it before trial.
          The  trial  court also directed Kenai Chrysler  general
manager  Duane Bannock to rely on a prepared script in responding
to questions by Kenai Chrysler that asked Bannock to describe the
legal advice he had received concerning the Denisons claim.
          At  the  conclusion of the trial, the jury  returned  a
verdict  in  the Denisons favor.  The verdict awarded David  $500
for loss of his down payment, $4,650 for the value of his Pontiac
trade-in, and $5,000 for the loss of use of his Pontiac after the
sale.    Although  the  jury  found  that  Kenai   Chrysler   had
demonstrated reckless indifference to Davids interests, the  jury
foreman  advised the court that the jury did not  favor  awarding
punitive  damages.   Upon learning of the  foremans  advice,  the
Denisons indicated that they would waive their claim for punitive
damages.   The  superior court later awarded the Denisons  treble
damages under the UTPA; the award totaled $30,450.
          The  Denisons also requested $63,280 in attorneys fees.
After  subtracting fees incurred by the Denisons in  the  probate
matter,  the  superior court awarded them eighty percent  of  the
amount  they requested.  The court noted that while  it  did  not
challenge the accounting or hourly rate, it [did] find  that  the
time  spent  in pursuit of the claim was more than  should  [have
been]   reasonably   charged   to  the   Defendants   under   the
circumstances  .  .  . .  The court then entered  final  judgment
against   Kenai  Chrysler.   In  entering  judgment,  the   court
neglected  to  rule  on two motions the Denisons  had  previously
filed   asking  the  court  to  impose  sanctions  against  Kenai
Chrysler; the court had reserved ruling on the motions  until the
conclusion of trial, but evidently forgot to address them  before
entering judgment.
          Kenai   Chrysler  appeals  on  various  grounds.    The
Denisons cross-appeal, contesting the award of attorneys fees and
the trial courts failure to sanction Kenai Chrysler.
     A.   The Superior Courts Summary Judgment Rulings
          Kenai  Chrysler  first challenges the  superior  courts
summary judgment orders.3
          1.     Summary  judgment  for  Denisons  on  claim  for
declaratory relief
          The  Denisons moved for summary judgment on their claim
for  a  declaratory judgment that the contract between David  and
Kenai Chrysler was void and not merely voidable; they filed their
initial  motion  before the close of discovery.   Kenai  Chrysler
argued  in  opposition that issues of fact existed as to  whether
the  Denisons neglected and abandoned their duties as  guardians;
the company moved for a continuance under Alaska Civil Rule 56(f)
until discovery was complete.  The court granted the continuance.
The  Denisons renewed their motion for summary judgment after the
close  of  discovery and supported their renewed motion  with  an
affidavit  of Dorothy Denison describing the duties the  Denisons
performed  as Davids guardians.  Kenai Chrysler failed to  oppose
the  renewed motion and offered no evidence suggesting  that  the
guardianship had been abandoned.  The superior court granted  the
renewed motion for summary judgment, declaring the sales contract
void as a matter of law.  On appeal, Kenai Chrysler contests  the
order granting summary judgment.
          As  a  preliminary matter, we note that Kenai  Chrysler
abandoned  this  issue by failing to oppose the Denisons  renewed
motion  for  summary  judgment.   Even  if  Kenai  Chrysler   had
preserved  the  issue, moreover, the companys position  would  be
unpersuasive.   Kenai  Chrysler points out that  Alaska  has  not
expressly  held  that  a valid guardianship  order  automatically
voids  an  attempt by the ward to create a binding contract.   In
Kenai  Chryslers view, the party contracting with the ward should
at  least  be  entitled to restitution; and in any  event,  Kenai
Chrysler  maintains,  factual  issues  existed  here  as  to  the
validity of Davids guardianship.
          These  arguments  lack  merit.  Under  the  Restatement
(Second)   of   Contracts,  the  existence  of  a   valid   legal
guardianship precludes the formation of a valid contract with the
          guardianships ward.4  In keeping with the Restatements view, we
ruled  in Pappert v. Sargent that a party who attempted to  enter
into a contract with a ward would be entitled to restitution only
in  the absence of actual or constructive knowledge of  the wards
incompetence.5  Kenai Chrysler nevertheless cites  Pappert  as  a
case  supporting  its position that a genuine issue  of  material
fact  existed as to whether the dealership had notice  of  Davids
guardianship.    But  Kenai  Chrysler  misreads   Pappert.    The
incompetent party in Pappert was not under a legal guardianship,6
and  the  circumstances of the disputed transaction in that  case
failed  to  create  any  reason to  suspect  incompetence.7    By
contrast, in the present case, David Denison was a ward  under  a
formal guardianship order that declared him incompetent to  enter
into   a  contract.   And  under  the  Restatement  (Second)   of
Contracts,  the guardianship order gave notice to the  public  of
Davids incapacity:
          The  guardianship proceedings are treated  as
          giving  public notice of the wards incapacity
          and  establish  his status  with  respect  to
          transactions during guardianship even  though
          the  other  party to a particular transaction
          may  have no knowledge or reason to  know  of
          the   guardianship:  the  guardian   is   not
          required  to  give  personal  notice  to  all
          persons who may deal with the ward.[8]
          Since  Kenai Chrysler had constructive notice of Davids
incapacity, it was not entitled to restitution under  Pappert  v.
          Kenai   Chryslers   position   also   ignores   Alaskas
territorial  case  law.  In The Emporium  v.  Boyle,  the  Alaska
territorial   court   followed  opinions  from   several   states
recognizing that an adjudication of insanity is notice to all the
world of the fact that from that time on neither the lunatic  nor
his  estate can be held upon any contract except those  completed
before  that time.10  Applying this principle, the court  in  The
Emporium held that a letter of credit authorizing another  person
to  purchase goods on account was automatically revoked when  the
person  who  wrote  the letter was declared incompetent.11   This
conclusion was justified, the court explained, because the  world
was charged with notice of the adjudication.12
          Based  on  these  authorities,  we  conclude  that  the
superior  court correctly interpreted and applied  the  law.   We
also  reject  Kenai  Chryslers suggestions  that  factual  issues
concerning Davids state of mind at the time of the sale precluded
summary judgment on the Denisons claim for declaratory relief.
          The  Restatement makes it clear that a  ward  does  not
regain  the ability to enter into a contract merely by  having  a
lucid  interval; instead, to establish restored ability to  enter
into a contract, the evidence must show that the guardianship was
terminated or abandoned.13   Although Kenai Chrysler argues  here
that  evidence  of  the Denisons neglect might have  supported  a
finding  of restored capacity, the Restatements standard requires
more  than a showing of mere neglect.  The Restatement refers  to
          the termination of a guardianship occurring by death or removal
of  the guardian, or by lapse where the ward resumes full control
of his property without interference over a substantial period of
          To  support its claim that the Denisons abandoned David
as  their  ward,  Kenai Chrysler alleges that  the  Denisons  (1)
failed  to produce evidence that they had filed a visitor  report
as  required by AS 13.26.118(a); (2) allowed David to use his own
bank   account;  (3)  permitted  David  to  work  in   a   retail
establishment  where  he  used a cash  register;  (4)  failed  to
prevent David from entering into the Dodge Neon transaction;  (5)
failed  to  inform  Kenai Chrysler promptly of the  guardianships
existence; (6) failed to prevent David from driving the Neon; and
(7)   failed  to  appoint  a  conservator  for  David  when  they
encountered  trouble  controlling  his  purchases.    But   these
circumstances  fail to raise a genuine question of material  fact
on the issue of abandonment.
          The  absence  of  a  routine report hardly  amounts  to
abandonment.  Nor can abandonment be shown by evidence suggesting
that the Denisons encouraged David to act independently.  To  the
contrary,  the terms of Davids guardianship order instructed  his
guardians  to  encourage David to be as independent  as  possible
while still protecting him.  Allowing David a bank account and  a
job  falls  squarely  within the scope of these  instructions  by
encouraging Davids development.
          Furthermore, the guardianship order did not oblige  the
Denisons  to watch Davids every movement in order to prevent  him
from trying to enter into contracts.  Instead, as we have already
observed, the guardianship order itself gave legal notice to  all
potential  contracting parties to avoid entering into  a  bargain
with David.  Accordingly, neither the Denisons failure to prevent
the  Kenai  Chrysler  contract nor their failure  to  give  Kenai
Chrysler advance warnings could reasonably be construed to  imply
abandonment of the guardianship.15
          Finally,  the  Denisons supposed inability  to  control
Davids  spending does not reasonably suggest an abandonment;  the
uncontradicted  evidence  of  their ongoing  efforts  to  control
Davids finances shows just the opposite.  The Denisons are Davids
guardians, not his guarantors.
          In  short, Kenai Chrysler failed to adduce any evidence
sufficient  to raise a genuine issue of material fact  precluding
the  superior  court from ruling as a matter of law  that  Davids
status as a ward rendered his contract with Kenai Chrysler  void.
We  thus  affirm  the  superior  courts  summary  judgment  order
declaring the contract void as a matter of law.
          2.   Summary   judgment  for  the  Denisons  on   Kenai
               Chryslers affirmative defenses
          The  superior  court also granted the Denisons  summary
judgment  motion on all of Kenai Chryslers affirmative  defenses.
Kenai  Chrysler  argues  on  appeal  that  summary  judgment  was
inappropriate, specifically contending that the trial court erred
in  precluding the company from defending on the grounds that the
Denisons failed to mitigate their damages and neglected to join a
          necessary party, GMAC.
               a.   Mitigation of damages
          Kenai Chrysler argues that the superior court erred  in
granting  summary judgment to the Denisons on the issue of  their
alleged   failure  to  mitigate  their  damages.   The   Denisons
recognize  that  they  had  a duty to act  on  Davids  behalf  to
mitigate  his  damages, but argue that they did  everything  they
could   to  comply  with  that  duty.   The  only  money  damages
ultimately implicated by Kenai Chryslers mitigation defense  were
those  resulting from the companys UTPA violations: specifically,
the  jury awarded the Denisons damages for the $500 down  payment
Kenai  Chrysler  refused to refund, the $5,000 in  damages  David
incurred  by  losing  the  use of his  Pontiac,  and  the  $4,650
representing his permanent loss of the car itself.
          Under  the  undisputed facts, only one of  these  three
items  of  damages  lost-use damages  arguably  fell  within  the
Denisons  control.  Kenai Chrysler had the sole power to mitigate
the  $500  down payment it received from David.  But the  company
refused  to  unwind the contract and refund the cash.  Similarly,
only  Kenai Chrysler could have mitigated Davids damages for  the
permanent loss of his Pontiac.  But the company refused  to  give
the  car  back, and thus permanently deprived David of  its  fair
market  value.   The  superior  courts  summary  judgment   order
properly barred Kenai Chrysler from raising a mitigation  defense
as to these damages.
          The courts order granting summary judgment becomes more
problematic  as  applied  to  the  Denisons  claim  for   damages
attributable to Davids loss of use of his car.  Our case law does
not  preclude  lost-use  damages  in  cases  involving  permanent
deprivation.  In fact, we have specifically allowed an  award  of
loss   of  use  damages  even  when  property  has  been  totally
destroyed.16   We  have further held that a plaintiff  who  loses
property is not always made whole by being paid fair market value
at some later time; we have recognized that, as long as the delay
in  finding  a suitable replacement is reasonably necessary,  the
plaintiff  in  such  cases can be awarded damages  exceeding  the
propertys  fair  market  value.17  We  have  also  ruled  that  a
plaintiff who claims loss of use need not incur any actual  costs
for  temporary replacement; the claimant may instead rely  on  an
estimate of the cost for temporary replacement.18
          On  the other hand, as the superior courts instructions
recognized,  our case law unquestionably precluded  the  Denisons
from  claiming  loss  of use damages beyond the  time  reasonably
necessary  to  replace  Davids Pontiac.19  Because  the  Denisons
needed  to take reasonable steps to limit the duration  of  their
lost-use  damages,  the trial courts summary judgment  order  was
inappropriate to the extent that it purported to rule as a matter
of law that the Denisons had actually met their duty to mitigate,
thereby  precluding  Kenai Chrysler from maintaining  that  their
delay  in  replacing  the  Pontiac was unreasonable.   Since  the
reasonableness  of  the Denisons delay was  disputable  when  the
superior  court  granted summary judgment, we  agree  with  Kenai
Chrysler  that  its right to raise a mitigation defense  on  this
point could not be denied as a matter of law.
          The  appellate record nevertheless establishes that any
error in granting summary judgment against Kenai Chrysler on  the
Denisons  duty to mitigate their loss of use damages amounted  at
most  to  harmless  error.  Specifically, the record  establishes
that,  despite the seeming breadth of its summary judgment order,
the   superior  court  allowed  Kenai  Chrysler  to  contest  the
reasonableness of the Denisons claim for loss of use damages  and
to  argue  that  they  could have limited  their  losses  through
reasonable action.
          At   trial,  the  Denisons  specifically  objected   to
evidence   presented  by  Kenai  Chrysler  that  challenged   the
reasonableness  of their loss of use claim, insisting  that  this
evidence  violated the trial courts order granting  them  summary
judgment  on  Kenai Chryslers affirmative defense of  mitigation.
But  the  trial  court  overruled this objection,  allowed  Kenai
Chrysler to rely on the disputed evidence, and specifically ruled
that  Kenai Chrysler could argue to the jury whether the lost-use
damages  claimed  by  the  Denisons  were  reasonable  under  the
circumstances.  By submitting the issue of reasonableness to  the
jury  after allowing the parties to contest the point, the  trial
court  effectively  avoided  any  prejudice  stemming  from   the
overbreadth of its summary judgment order.
          Although Kenai Chrysler relatedly contends that it  was
prejudiced  by  the  superior courts failure  to  give  a  proper
instruction on the Denisons duty to limit their lost-use damages,
the  record belies this claim of error.  At trial, Kenai Chrysler
objected  to  the Denisons proposed instruction on the  issue  of
loss  of  use  of  Davids  Pontiac.   The  company  proposed   an
alternative  instruction,  asserting that  the  language  of  its
proposed  version more closely approximated Alaskas pattern  jury
instruction  on  lost-use  damages.20  Kenai  Chryslers  proposed
instruction provided:
          Plaintiffs also claim they have been  damaged
          by  the loss of use of the 1994 Pontiac.   If
          you  find that the defendant caused the  loss
          of  the  1994 Pontiac, then the plaintiff  is
          entitled to be compensated for the fair value
          of  the use of the 1994 Pontiac for the  time
          period reasonably necessary to replace it.
          The court ultimately instructed the jury on loss of use
of property as follows:
               Plaintiffs also claim on behalf of David
          Denison  that he was damaged by the  loss  of
          use of the 1994 Pontiac since the time it was
          delivered  to Kenai Chrysler.  The plaintiffs
          are  entitled to be compensated for the  fair
          value of the use of the 1994 Pontiac for  the
          time  period reasonably necessary to  replace
          Kenai  Chrysler now objects that the courts instruction
modified  Alaskas  pattern  loss of  use  instruction.   But  the
company  fails to explain exactly what change it objects to,  why
          the change amounted to legal error, and how any error caused
actual  prejudice.   Kenai Chryslers argument  is  also  puzzling
because  the  companys own proposed instruction  seems  to  stray
further  from  the pattern instruction than the  instruction  the
trial  court  actually  gave.21   In  light  of  Kenai  Chryslers
conclusory briefing on this point, we conclude that it has failed
to adequately preserve the issue.22
          Kenai  Chrysler  also complains that  the  trial  court
erred in failing to give  the jury a specific instruction on  the
Denisons  duty  to mitigate their damages.  But while  the  trial
court  did  not specifically instruct on the duty to mitigate  as
such,  its  instruction on loss of use damages  communicated  the
substance of that requirement.
          Alaskas  Pattern Jury Instruction on mitigation  speaks
in  terms  of  avoidable consequences and uses  the  language  of
reasonableness,  informing the jury  that  a  plaintiff  may  not
recover  for a loss that could have been avoided with  reasonable
efforts  and that the jury may not require the defendant  to  pay
for  any loss that the plaintiff could reasonably have avoided.23
In  this  case, as we have seen, the trial courts instruction  on
loss  of use damages specifically told the jury that the Denisons
were entitled to be compensated for the fair value of the use  of
the 1994 Pontiac for the time reasonably necessary to replace it.
We  see  no  practical  distinction between this instruction  and
Alaskas Pattern Instruction on the duty to mitigate, as it  would
have applied to the Denisons loss of use claim.
          Hence,  to  the extent that the trial courts  error  in
granting summary judgment against Kenai Chrysler caused the court
to  omit  a specific instruction on mitigation, we conclude  that
this omission proved inconsequential.  We therefore hold that the
trial  courts  order  granting  summary  judgment  against  Kenai
Chrysler  on its mitigation defense did not result in  reversible
               b.   Failure to join a necessary party
          Kenai  Chrysler claimed as an affirmative defense below
that  the Denisons claims under the UTPA were barred because  the
Denisons  had  failed  to join GMAC as a  necessary  party  under
Alaska  Civil  Rule 19(a).24  Kenai Chrysler reasoned  that  GMAC
needed to be named because no other party had legal authority  to
rescind  the  sales contract once Kenai Chrysler assigned  it  to
GMAC.   Kenai  Chrysler now challenges the superior courts  order
granting  the  Denisons summary judgment on this point,  renewing
the claim it asserted below.
          Because  it is undisputed that Kenai Chrysler  assigned
the  Neons financing contract to GMAC shortly after David  signed
it,  the  only  controversy is whether  the  assignment  to  GMAC
precluded the Denisons from obtaining complete relief from  Kenai
Chrysler  without naming GMAC.25  As the superior court correctly
recognized in addressing this point, there was no valid  contract
for  Kenai Chrysler to assign to GMAC.  GMAC therefore played  no
necessary  role in the Denisons action.  Their claims  under  the
UTPA concerned Kenai Chryslers treatment of David Denison and his
guardians,  not whether the Denisons were entitled to  rescind  a
contract that had never been validly formed.  The superior  court
          properly granted summary judgment on this point.

     B.   The Superior Courts Refusal To Compel Discovery
          Kenai  Chrysler  moved  under Civil  Rule  37(a)(2)  to
compel  proper  and sufficient responses to a list  of  discovery
requests.   The Denisons opposed that motion on the  ground  that
Kenai  Chrysler  had not made a good faith attempt  to  meet  and
confer with them, as required under Civil Rule 37(a)(2)(B);  they
alternatively contended that Kenai Chrysler was not  entitled  to
the   information  it  sought.   Kenai  Chrysler  challenges  the
superior courts denial of its motion to compel these responses.26
          Although the superior court did not specify its reasons
for  denying Kenai Chryslers motion to compel discovery,  it  was
well  within  the courts discretion to deny the motion  based  on
Kenai   Chryslers  failure  to  meet  and  confer.   Civil   Rule
37(a)(2)(B)  requires  a  party moving  to  compel  discovery  to
certify  that  it  has in good faith conferred  or  attempted  to
confer with the person or party failing to make the discovery  in
an  effort  to  secure the information or material without  court
action.27 When the Denisons initially refused to comply with Kenai
Chryslers  discovery requests, the company sent  the  Denisons  a
letter  demanding  that they comply or face a motion  to  compel.
The letter itemized the discovery requests at issue but failed to
respond to the Denisons objections of overbreadth and irrelevance
except  in a cursory fashion.  The letter also nominally  claimed
to  be an attempt to confer, but it included no offer to actually
meet with the Denisons or to engage in a dialogue in any medium.28
          In  moving to compel discovery from the Denisons, Kenai
Chryslers  counsel certified that Kenai Chryslers letter  to  the
Denisons  met Rule 37(a)(2)(B)s requirement of an offer  to  meet
and  confer.   But given these circumstances, the superior  court
could  reasonably have found that Kenai Chrysler made no  genuine
attempt  to resolve the disputed discovery issues before  turning
to  the  court  with its motion to compel.  Because the  superior
court  properly could have denied Kenai Chryslers motion on  this
basis, we find no abuse of discretion.
     C.   The Superior Courts Evidentiary Rulings
          Kenai Chrysler challenges two evidentiary rulings  made
by the superior court during trial.
          1.    Refreshing the memory of Kenai Chryslers  general
          The  Denisons  called Justin Goodman as  a  witness  at
trial.   Goodman  was the general manager of Kenai  Chrysler  and
frequently  gave  rate  quotes for  car  rentals.   The  Denisons
counsel  asked  Goodman whether he remembered  providing  a  rate
quote to Dorothy Denison for a rental car.  Goodman replied  that
he  did  not.   The  Denisons counsel  then  showed  Goodman  two
documents  a fax cover sheet addressed to Dorothy Denison  and  a
price  quote signed by Goodman estimating the rental rate  for  a
compact  car.  The day before, the superior court had refused  to
admit  the  same rental quote into evidence after Kenai Chryslers
counsel objected that the Denisons had not disclosed the document
in  advance of trial.  Kenai Chrysler objected when the  Denisons
sought  to  use  the rate quote to refresh Goodmans recollection,
relying  on the courts earlier order excluding it from  evidence.
In  response to the renewed objection, the trial court ruled that
the  Denisons  would  not  be barred from  using  it  to  refresh
Goodmans recollection.
          Kenai Chrysler now argues that the trial court erred in
allowing  the  documents use to refresh recollection,  contending
that  the  company suffered unfair surprise because the  Denisons
failed to produce the rate quote before trial.
          Alaska  Rule  of  Evidence 612(a) governs  this  issue,
stating  [a]ny  writing or object may be used  by  a  witness  to
refresh the memory of the witness while testifying.29  Under this
rule,  a document need not be admissible to be used to refresh  a
witnesss memory.30  Instead, if the party using the document does
not wish to admit it, Rule 612(a) simply allows any party seeking
to  impeach  the witness whose memory is refreshed the  right  to
inspect the writing . . . , to cross-examine the witness thereon,
and to introduce those portions which relate to the testimony  of
the  witness.31   By  expressly granting the right  to  immediate
inspection,  the  rule implicitly recognizes  the  absence  of  a
pretrial duty of disclosure.
          Under   the   rule,  then,  Kenai  Chrysler   had   the
opportunity to inspect the rate quote and to use it  as  a  basis
for  impeaching Goodman during cross-examination.  But  the  rule
gave it no right of earlier disclosure.  Kenai Chrysler cites  no
other authority requiring early disclosure for this limited  use.
Nor  does  it  specify how the rate quotes use to refresh  memory
caused  any  actual  prejudice.  Moreover,  we  note  that  Kenai
Chrysler  was given a copy of the rate quote the day  before  the
Denisons  used it to refresh Goodmans recollection.  Under  these
circumstances, the superior court did not abuse its discretion in
allowing the Denisons to use the rate quote for this purpose.
          2.   Requiring   Kenai  Chryslers  witness  to   answer
               questions  by reading written answers prepared  by
               the trial court
          During  Kenai  Chryslers direct  examination  of  Kenai
Chryslers  former general manager, Duane Bannock, Kenai Chryslers
trial counsel asked Bannock whether he had sought advice from  an
attorney  about David Denisons situation and, if so, what  advice
he  had  received.   The Denisons objected; in   response,  Kenai
Chryslers counsel insisted that Bannocks testimony on this  point
was  necessary  to  show  that  the  dealerships  actions  merely
reflected  its good faith efforts to follow the legal  advice  of
its  counsel.   Kenai Chryslers trial counsel assured  the  court
that  were  not arguing about the rule of law . . .  .  Were  not
trying  to  state a legal conclusion here . . . . Were trying  to
get  to  Duane Bannocks state of mind and the position  of  Kenai
Chrysler  during that time period, and whether or not  they  were
acting  fairly or whether or not they had a reasonable basis  for
their actions.
          After  consulting with counsel for both sides and  with
the witness, the trial court prepared two questions and responses
that  it  believed  sufficient to allow  Bannock  to  make  Kenai
Chryslers  desired point without dwelling on legal  details  that
might  lead  the jury to view the legal advice as a  correct  and
authoritative statement of applicable law.  The court ruled  that
questions  and  answers  along the lines  it  proposed  would  be
          After  the jury returned to the courtroom and  Bannocks
direct  examination resumed, Bannock began to  stray  beyond  the
scope of the responses the court had ruled admissible.  When  the
Denisons objected, the court instructed Bannock to read from  the
paper  if he was unable to confine his answers to conform to  the
courts written responses.  The court then informed the jury  that
the  court  had drafted the responses for Bannocks use  and  that
jurors  should therefore not hold it against Bannock or  question
his credibility if his answers did not appear to be spontaneous.
          On  appeal,  Kenai  Chrysler  challenges  the  superior
courts  decision to require Bannock to read from answers prepared
by  the  court.   But Kenai Chrysler has failed to preserve  this
point for appeal.  Specifically, Kenai Chrysler never objected to
the  trial  courts rulings and made no offer of proof as  to  the
details excluded from Bannocks proposed testimony.32
          Under  Alaska Rule of Evidence 103(a)(2), a  party  may
not  claim  error in a ruling that excludes evidence  unless  the
substance of the evidence was made known to the court by offer or
was apparent from the context.33  These requirements have not been
met  here, since Kenai Chrysler made no formal offer to establish
a  record  of  the evidence it sought to include, and  since  the
context  provided by the current record fails to make clear  what
testimony the trial court excluded.
          As  it  stands, the appellate record provides no  basis
for  meaningful  appellate  review of Kenai  Chryslers  claim  of
prejudicial error.  Accordingly, Kenai Chryslers failure to raise
the  issue below, coupled with its failure to provide an adequate
offer of proof, precludes it from challenging the superior courts
ruling for the first time on appeal.34
          We  find  no sign of plain error here.35  The questions
and responses directed by the trial court appear to have captured
          the main point that Kenai Chryslers trial counsel believed to be
crucial   namely,  that  Kenai Chryslers conduct  comported  with
advice received from its lawyer.  Furthermore, Bannocks testimony
addressing  this point was marginally relevant, at most,  because
the  advice  Bannock described was received  a  month  after  the
disputed sale  well after Kenai Chrysler had taken numerous steps
committing  the dealership to its position that the contract  was
valid  and  would  be  enforced.   We  thus  see  no  basis   for
overturning  the  superior  courts  rulings  concerning  Bannocks
     D.   Unfair Trade Practices Act Claim
          Kenai Chrysler next argues that the evidence failed  to
support  the jurys finding of liability under the UTPA  and  that
the companys conduct did not violate the UTPA as a matter of law.36
          In  arguing this point, Kenai Chrysler insists  that  a
merchants  attempt to enforce what it sees as  a  valid  contract
cannot,  as  a matter of law, amount to an unfair trade  practice
under  the  UTPA.   Kenai Chrysler appears to  contend  that  the
evidence here showed nothing more.37
          The  Denisons sued under two sections of the UTPA:   AS
45.50.471(a) and AS 45.50.471(b)(14).  Subsection .471(a) is  the
UTPAs  catchall  provision; it states that  [u]nfair  methods  of
competition  and  unfair or deceptive acts or  practices  in  the
conduct  of  trade  or  commerce are  declared  to  be  unlawful.
Subsection .471(b)(14) further provides that: [t]he terms  unfair
methods  of competition and unfair or deceptive acts or practices
include,  but  are  not limited to, the following  acts:  .  .  .
representing  that  an  agreement  confers  or  involves  rights,
remedies  or obligations which it does not confer or involve,  or
which are prohibited by law.
          As  a  general matter, a prima facie case of unfair  or
deceptive acts or practices under the UTPA requires proof of  two
elements: (1) that the defendant is engaged in trade or commerce;
and  (2) that in the conduct of trade or commerce, an unfair  act
or  practice has occurred.38  We have previously ruled that  [a]n
act or practice is deceptive or unfair it if has the capacity  or
tendency  to  deceive.39  The plaintiff need not prove  that  the
defendant intended to deceive; it is enough to show that the acts
and  practices were capable of being interpreted in a  misleading
way.40    Hence,  an act or practice can be unfair without  being
          A  variety  of factors can be considered in determining
the existence of an unfair practice, including
          (1) whether the practice, without necessarily
          having  been previously considered  unlawful,
          offends   public  policy  as  it   has   been
          established by statutes, the common  law,  or
          otherwise   whether, in other  words,  it  is
          within  at least the penumbra of some common-
          law,  statutory, or other established concept
          of  unfairness;  (2) whether it  is  immoral,
          unethical,  oppressive, or unscrupulous;  (3)
          whether  it  causes  substantial  injury   to
          consumers    (or   competitors    or    other
The  trial  court  in  this case instructed  the  jury  on  these
          Kenai  Chrysler correctly asserts that these provisions
require proof of something more than the mere assertion of a good
faith but mistaken belief that a contract was valid.43  Yet courts
have broadly interpreted similar provisions to prohibit merchants
from  going beyond mere assertion of mistaken beliefs by engaging
in conduct that is deceptive, unethical, or unfair.44  The Fourth
Circuit Court of Appeals, for example, described an unfair  trade
practice as an inequitable assertion of power or position, ruling
that [a]lthough it may be rare that the exercise of a contractual
right will meet this stringent standard, it is possible for  such
an  exercise, when it involves egregious and aggravating conduct,
to  constitute  an  unfair  .  . .  trade  practice  under  North
Carolinas UTPA.45
          Likewise,  Georgia  has recognized that  a  seller  can
commit  an  unfair trade practice by failing to  investigate  the
validity  of  the  sellers title after learning  of  a  potential
problem  with it; applying this principle, the Georgia  Court  of
Appeals held that, under the circumstances before it, the sellers
inaction  amounted to an unfair practice because it  reflected  a
blatant disregard of the rights of innocent purchasers.46
          Many  other  jurisdictions define unfair  or  deceptive
acts   or   practices  to  extend  beyond  conduct   specifically
prohibited  by  statute or common law;47 instead of  looking  for
expressly prohibited conduct, these cases focus on the unfairness
of   the  disputed  practice  under  the  specific  circumstances
          Applying the flexible, case-specific approach  used  in
these  cases, we think that reasonable jurors could  fairly  find
that  Kenai Chryslers conduct went far beyond a simple  assertion
of  the  companys  good faith belief that the sale  contract  was
          The  jury  heard substantial evidence tending  to  show
that  Kenai Chrysler waited a full month after actually  learning
of  Davids disability before it first consulted its lawyer  about
the  guardianships  effect  on the  disputed  contract.   In  the
interim,  and  every  step  of the way, Kenai  Chrysler  actively
fought  to defeat the Denisons efforts to rescind the sale.   The
company charged ahead with selling Davids trade-in and finalizing
the DMV paperwork for the sale.  Its employees repeatedly ignored
the  express requests of Davids legal guardians by returning  the
keys directly to David; they also advised David that the car  was
his,  despite  their knowledge that the state  had  declared  him
developmentally disabled and had appointed his parents  as  legal
guardians.   Later,  after  it knew of  the  guardianship,  Kenai
Chrysler sent a letter to David himself demanding that he  remove
the  Neon from its lot or incur storage charges.  And even though
GMAC  agreed  to  treat  the unpaid balance  of  Davids  loan  as
uncollectible,  Kenai Chrysler after paying the balance  to  GMAC
nonetheless counterclaimed against the Denisons for the amount it
had paid.
          In  our view, a jury considering the totality of  these
circumstances  in the light most favorable to the Denisons  could
reasonably  have found that Kenai Chryslers attempts  to  enforce
the  sales contract blatantly disregarded the Denisons rights and
amounted  to  unethical  conduct.49  We thus  conclude  that  the
evidence as a whole was sufficient to support the Denisons claims
under the UTPA.
     E.   Jurys Award
          Kenai  Chrysler  challenges  the  jurys  assessment  of
damages for the value of Davids 1994 Pontiac and for his lost use
of the car.
          1.   Value of Davids Pontiac
          The  jury  awarded the Denisons $4,650 in  damages  for
Davids  permanent loss of his Pontiac.  David had  purchased  the
Pontiac  from another car dealership in Kenai for $5,500,  a  few
months before he traded it in at Kenai Chrysler.  Evidence of the
price  charged by the local dealership a few months before  Kenai
Chrysler took Davids car provided the jury a sufficient basis for
determining the value of the Pontiac when he traded it in for the
Neon.  David still owed about $850 for the car.  It appears  that
the  jury  subtracted this amount from Davids  original  purchase
price  and awarded him the balance.  Although Kenai Chrysler  had
valued  Davids trade-in at only $1,300, the jury was not  obliged
to  rely  on  this price, since it reflected the  cars  wholesale
value.   Kenai  Chryslers  own  manager  acknowledged  that   the
Pontiacs  retail value would be between $4,000 and  $5,000.   The
dealership  offered no estimate of the cost required  to  restore
the Pontiac to retail condition.  Given this evidence, the record
supports the jurys award for the car.
          2.   Loss of use of Davids Pontiac
          The jury awarded David an additional $5,000 for loss of
use  of  his car.  As we have previously mentioned, the  superior
court  instructed  the jury that it could award  David  the  fair
value  of  the  use  of  the 1994 Pontiac  for  the  time  period
reasonably  necessary to replace it.  The court  also  instructed
the jury that [t]he value of the use of the 1994 Pontiac is to be
measured by the cost of obtaining a substitute for it during  the
period  of loss of use.  At the time of trial, David had not  yet
replaced  the Pontiac; the Denisons claimed that their  delay  in
replacing  the  car  was reasonably necessary because  David  was
unable to afford a replacement.
          When the jury returned its verdict awarding loss of use
damages,  about twenty months had elapsed since the date  of  the
sale.  Spread over the twenty months, the $5,000 award amounts to
$250 per month for Davids loss of use of the Pontiac.
          Justin  Goodman, the general manager of Kenai  Chrysler
and  former  manager of its rental fleet, testified that  he  had
seen rental rates as low as $499 per month in the Kenai area.  He
also recalled that on at least one occasion he had quoted a price
of $1,200 per month for a new compact car.  He further testified,
however,  that if the Denisons had asked, he could  have  allowed
David to use a car free of charge.
          Kenai  Chrysler  contends that this evidence  fails  to
support  the award for loss of use damages.  In Ben Lomond,  Inc.
          v. Campbell, we held that testimony concerning the reasonable
rental  value for a diesel generator was sufficient to support  a
jury award for loss of use of a comparable generator.50  Here, if
the  jury  found the Denisons twenty-month delay to be reasonably
necessary and disbelieved Goodmans after-the-fact contention that
a   free  car  would  have  been  available,  Goodmans  testimony
concerning  rental value provided a substantial basis to  support
the  jurys  award:  the award, amounting to $250  per  month  for
twenty  months,  would fall well below the  lowest  rental  value
mentioned  by Goodman  $499 per month.  And it would nearly  have
matched  Goodmans low range estimate if the jury found  that  the
Denisons  should reasonably have replaced the Pontiac within  ten
months after the sale.51
          Kenai  Chrysler  also argues that the jurys  award  for
loss of use damages was excessive because it was disproportionate
to the value of Davids Pontiac.  To be sure, even if supported by
solid evidence of monthly rental value, an award for loss of  use
over  an  extended  period of time could  at  some  point  become
excessive  especially if the award was combined, as it was  here,
with  an  additional award for permanent loss  of  the  propertys
value.   But in Ben Lomond, Inc. v. Campbell, we emphasized  that
[t]he  question of whether damages are inadequate, or  excessive,
is in the first instance committed to the discretion of the trial
judge.52  In light of the trial courts broad discretion over  the
issue, we recognized in Ben Lomond that a trial courts award  for
lost-use  damages could be overturned as excessive  only  in  the
most  exceptional  circumstances to prevent  any  miscarriage  of
justice.53  Relying on this standard, we specifically declined to
hold  that a loss of use award should be limited to the value  of
the  property,54  noting  that we had  explicitly  rejected  this
position on prior occasions.55
          Our decision in Ben Lomond nevertheless recognized that
a  rule  of proportionality applies to such cases.56  Ben  Lomond
involved  a  dispute  over  a  diesel  generator;  the  claimant,
Campbell,  asserted the right to take possession of the generator
from  the defendants.57  The jury valued the generator at  $8,000
and  awarded  it  to Campbell.58  In addition, the  jury  awarded
Campbell $13,000 in damages for loss of use of the generator over
a  period  of approximately ten months.59  It based the award  on
testimony  estimating the reasonable monthly rental value  for  a
comparable generator.60
In  considering whether the award for loss of use was  excessive,
we acknowledged that the rule of proportionality would preclude a
loss  of  use  award that was all out of proportion to  the  fair
market  value  of  the  item  itself.61   We  then  compared  the
generators  $8,000  value  to the loss of  use  damages  totaling
$13,000  and  declined  to find that this imbalance  warranted  a
finding of excessiveness: The $13,000 loss of use award is not so
much  higher than an acceptable estimate of the generators  value
as to violate the rule of proportionality . . . .62
          Our proportionality analysis in Ben Lomond dictates the
same  conclusion here.  The jurys $5,000 award for  loss  of  use
damages only slightly exceeds the Pontiacs fair market value  and
is  certainly not so high as to be all out of proportion  to  the
          fair market value of the Pontiac.63  Because Kenai Chrysler offers
no meaningful basis for distinguishing this case from Ben Lomond,
we  conclude that the jurys award for loss of use damages was not
excessive.  In reaching this conclusion, we emphasize that  Kenai
Chrysler did not contend below and has not argued on appeal  that
a twenty-month period of lost use is per se unreasonable and that
the  trial court should have imposed a shorter maximum time limit
for  loss  of use damages as a matter of law.  We note that  case
law  in  other jurisdictions arguably supports a rule that  would
establish definite time limits for loss of use damages, at  least
in  cases  where  the lost use does not result  from  intentional
conduct.64  Although a time-cap on loss of use damages might have
much  to  recommend it under certain circumstances,  given  Kenai
Chryslers failure to raise the point before the superior court or
argue  it  on  appeal,  we decline to consider  adopting  such  a
measure here.
     F.   The Jury Instructions
          In addition to the jury instruction issues that we have
already  discussed  above  in  connection  with  Kenai  Chryslers
arguments concerning the summary judgment order on its defense of
mitigation  of damages, Kenai Chrysler raises challenges  to  the
superior  courts  instructions on the issues of punitive  damages
and conversion.
          1.   Punitive damages
          The  superior  court instructed the  jury  on  punitive
damages.   Kenai Chrysler asserts that the facts of the case  did
not  warrant  the  instruction.  But any  error  in  giving  this
instruction  became harmless when the Denisons  expressly  waived
their  punitive damages claim after being informed that the  jury
seemed   disinterested  in  awarding  punitive  damages.    Kenai
Chrysler advances no reason to conclude that the punitive damages
instruction affected any of the remaining issues decided  by  the
jury.   Accordingly, the Denisons withdrawal  of  their  punitive
damages  claim  makes  it  unnecessary to  determine  whether  an
instruction on the claim was warranted.
          2.   Conversion instruction
          Kenai  Chrysler  further asserts that the  trial  court
erred  by instructing the jury on conversion.  But Kenai Chrysler
fails  to  provide  any citation to the record  to  support  this
assertion.   Our  own  review of the record  indicates  that  the
superior court did not instruct the jury on conversion.  We  thus
reject Kenai Chryslers claim of error as inadequately briefed and
     G.   Treble Damages
          Kenai Chrysler argues that the superior court erred  in
awarding  the  Denisons treble damages under the UTPA,  asserting
that  they  waived their right to treble damages  by  withdrawing
their claim for punitive damages.65  Kenai Chrysler reasons  that
treble damages under the UTPA are a form of punitive damages  and
were  therefore  encompassed in the Denisons  waiver.   But  this
reasoning  conflicts  with the language and purposes  of  Alaskas
treble damages provision.
          The  UTPAs  treble damages provision, AS  45.50.531(a),
states  that   [a]  person who suffers an ascertainable  loss  of
          money or property as a result of another persons act or practice
.  .  . may bring a civil action to recover for each unlawful act
or  practice three times the actual damages or $500, whichever is
greater  .  .  .  .66  This language appears to authorize  treble
damages  based solely on an allegation and finding that the  UTPA
has been violated.  In addition to specifying that treble damages
are  to be awarded as a matter of course, subsection .531(a) goes
on  to  allow  the  court to provide other  relief  it  considers
necessary and proper67  thereby reinforcing the provisions intent
to make treble damages automatic.  Accordingly, once the Denisons
established  a  UTPA  violation  resulting  in  a  monetary  loss
exceeding  the UTPAs $500 statutory damages threshold, subsection
.531(a)  allowed  them  to recover treble damages  regardless  of
whether they chose to seek any other form of relief.
          Kenai  Chrysler  nonetheless cites AS  45.50.531(i)  as
supporting its position.  Subsection .531(i) refers to awards  of
punitive damages under subsection .531(a), stating that all  such
awards  are  governed by Alaskas law allowing the state  to  take
fifty percent of all punitive damages awards:
          If  a  person  receives an award of  punitive
          damages under (a) of this section, the  court
          shall require that 50 percent of the award be
          deposited into the general fund of the  state
          under AS 09.17.020(j).  This subsection  does
          not grant the state the right to file or join
          a    civil   action   to   recover   punitive
          Kenai   Chrysler  reads  this  provisions  mention   of
punitive  damages  under (a) of this section as  a  reference  to
treble   damages  awarded  under  the  first  sentence  of   that
subsection.   But  this reading ignores the  second  sentence  of
subsection  .531(a), which authorizes a person suing  for  treble
damages  under  that subsection to pursue other forms  of  relief
besides  treble  damages, including common  law  relief  such  as
punitive  damages: Nothing in this subsection prevents  a  person
who  brings  an action under this subsection from pursuing  other
remedies  available under other law, including common law.69   In
our  view, subsection .531(i)s mention of punitive damages simply
refers  to  punitive damages awarded as other remedies  available
under subsection .531(a)s second sentence.
          Kenai  Chrysler also asserts that treble damages should
be  equated  to  punitive damages because they serve  a  punitive
role.   But this argument overlooks the other important  purposes
that  Alaskas  legislature  intended  the  UTPAs  treble  damages
provision to serve.  The legislative history of Alaskas provision
establishes  that treble damages were adopted not just  to  deter
fraud, but also to encourage injured parties to file suits  under
the  UTPA and to ensure that they would be adequately compensated
for  their  efforts.70  Moreover, because the current version  of
subsection  .531(a) no longer makes treble damages contingent  on
proof  of  a  willful  violation, a separate  award  of  punitive
damages for willful or reckless misconduct neither duplicates nor
conflicts  with  an  award  for treble damages  under  subsection
          In  short, we find no merit to Kenai Chryslers argument
that the Denisons waived their right to treble damages under  the
UTPA  by agreeing to withdraw their additional claim for punitive
     A.   Attorneys Fees
          As  prevailing parties under the UTPA, the Denisons are
entitled to full reasonable attorney fees.71  The Denisons  argue
in  their  cross-appeal  that  the  trial  court  inappropriately
reduced  the full fees they requested.  In addition, the Denisons
argue that the court incorrectly refused to award them fees  that
they incurred in the related probate matter.
          1.   The twenty-percent overall fee reduction
          The  superior  court awarded the Denisons  only  eighty
percent  of the amount of attorneys fees they requested for  work
done during the UTPA litigation.  In reducing the requested fees,
the  court  explained  that,  while it  does  not  challenge  the
accounting  or the hourly rate, it does find that the time  spent
in  pursuit  of  the  claim was more than  should  be  reasonably
charged  to the Defendants under the circumstances in this  case.
The  Denisons argue that the correct standard under the  UTPA  is
not  whether  it  is  reasonable to charge a losing  defendant  a
certain  amount  of  fees, but whether the fees  were  reasonably
incurred by the prevailing plaintiff.72
          Although  we have not previously interpreted the  UTPAs
provision  for  full reasonable fees, we have  interpreted  other
attorneys  fee  provisions  using  similar  language   and   have
consistently  ruled  that they give the trial court  considerable
discretion  in  determining the amount of  fees  that  should  be
considered  reasonable.73  Alaskas general  attorneys  fee  rule,
Civil  Rule  82,  similarly  recognizes  the  need  for  judicial
discretion:  Rule 82(b)(1) and (2) set out a specific schedule of
presumptively  awardable fees,74 while Rule  82(b)(3)  gives  the
trial court broad discretion to depart from the schedule for  any
equitable reason described in that subsection.75
          In  our  view, the UTPAs full reasonable fee  provision
gave  the  superior  court similarly broad discretion  to  decide
whether  the  Denisons  proposed fees were reasonable  under  the
totality of the circumstances presented.  Here, the court did not
question  the number of hours actually billed or the hourly  rate
of the billings.  It nevertheless reduced the amount the Denisons
requested  by twenty percent to reflect the fees that  the  court
believed to be reasonable based on its own observations.  In  our
view,  the  court did not err in interpreting the UTPA to  permit
this  approach; and we find no abuse of discretion in the  courts
evaluation  of the full amount of fees that should reasonably  be
          2.   Exclusion of fees for time spent in probate court
          Before reducing the award by twenty percent, the  trial
court  subtracted from the Denisons total attorneys  fee  request
all  fees  that  the  Denisons  incurred  in  the  probate  court
proceedings  in which Kenai Chrysler attempted to  modify  Davids
guardianship  order.  The Denisons argue that the superior  court
          should have awarded attorneys fees under the UTPA for the probate
case  because  the  guardianship hearing  was  a  part  of  Kenai
Chryslers UTPA violation.
          Although this argument is logically plausible, it  runs
into technical problems because the probate code includes its own
fee  provision,  which allows the probate court  to  require  any
petitioning  party  to  pay  some  or  all  of  the  costs  of  a
guardianship  proceeding if the court finds that  the  petitioner
proceeded maliciously, frivolously, or without just cause.76   In
this  case,  the  probate  court specifically  found  that  Kenai
Chryslers petition to amend Davids guardianship was frivolous; on
this  basis,  the  probate court required Kenai Chrysler  to  pay
$1,600  in  attorneys  fees.   Because  the  probate  codes   fee
provisions  govern all guardianship proceedings, and because  the
probate  court  in  this  case  actually  did  award  fees,   any
additional  award under the UTPA might result in double  recovery
by  the Denisons or expose Kenai Chrysler to double payment.   We
therefore  conclude  that  the superior  court  did  not  err  in
subtracting  billings attributable to the probate case  from  the
Denisons fee request under the UTPA.
     B.   Failure To Grant the Denisons Motions for Sanctions
          The  Denisons  argue that the superior court  erred  in
denying  its  motions to impose sanctions against Kenai  Chrysler
for  (1)  failing to provide a representative authorized to  bind
the  defendants  at the pretrial settlement conference,  and  (2)
submitting  legally inaccurate jury instructions.   The  Denisons
moved  for  sanctions on both of these grounds below,  and  Kenai
Chrysler  opposed  the  motions.  The trial  court  reserved  its
ruling  on the motions pending the conclusion of trial, but  then
apparently  lost  track of them, leaving the issue  of  sanctions
unresolved  when  the  court entered  its  final  judgment.   The
Denisons did not ask for a ruling before the court entered  final
judgment and evidently failed to remind the court that the issues
remained pending.
          Addressing  similar circumstances, we  have  previously
held  that a moving party forfeits the right to appeal  an  issue
raised in a motion left unresolved by the trial court unless  the
party  called  the  motion  to  the trial  courts  attention  and
insisted  on  a ruling before the court entered final judgment.77
This  precedent controls here. The Denisons failure to  flag  the
unresolved  motions  and request a superior court  ruling  before
entry of final judgment precludes them from arguing the merits of
the  motions  in  this appeal.  We thus decline to  consider  the
Denisons arguments on these points.
          For  these  reasons,  we  AFFIRM  the  superior  courts
MATTHEWS, Justice, dissenting in part.
          In  this dissent I argue that the loss of use award  is
excessive and should be remitted.  I also suggest that car rental
costs  that  are  not actually incurred should  not  be  used  to
measure loss of use damages over a long period of time because no
reasonable  person rents a car at weekly or monthly  rates  on  a
long-term basis.
          The  rule that loss of use damages can be obtained  for
property  that is destroyed or converted is of relatively  recent
origin.   Formerly  it was thought that the  correct  measure  of
damages  simply  was  the fair market value of  the  property  in
question  plus prejudgment interest from the date of loss.   This
was  an  ongoing controversy as of 1973 when we decided State  v.
Stanley.1   We  did  not  resolve  it  for  Alaska  until  Alaska
Construction Equipment, Inc. v. Star Trucking, Inc.  was  decided
in 2006.2
          Another somewhat less recent rule that is involved here
allows  reasonable  rental value as a  measure  of  loss  of  use
damages  even  though no substitute property is actually  rented.
We  adopted this approach in Burgess Construction Co. v. Hancock,
while recognizing that actually renting a replacement is required
in some jurisdictions.3
          Combining these two rules means that when a vehicle  is
tortiously  destroyed loss of use damages may be  recovered,  and
the  measure of the loss of use can be the reasonable rental cost
of  renting  a  substitute vehicle even though no  substitute  is
actually rented.  Recognizing that loss of use damages should not
go  on indefinitely, our rule is that they run only for the  time
reasonably required to buy a suitable replacement vehicle.4
          Buying  a  replacement  vehicle for  an  eight-year-old
Pontiac should not be a time-consuming process.  For all but  the
impecunious the process should be completed in a couple of weeks.
One  would expect then that the rules discussed here would  leave
the  plaintiff whose vehicle has been destroyed with a  realistic
measure  of recovery that is fair to both the plaintiff  and  the
defendant.   The plaintiff would be entitled to the  fair  market
value of the destroyed vehicle plus car rental charges for a week
or two.
          But  complications  develop when  the  plaintiff  whose
vehicle  is destroyed is impecunious and cannot afford to  buy  a
replacement  vehicle.  If the plaintiffs lack of financial  means
may be considered, it may be that the time reasonably required to
obtain  a substitute vehicle extends indefinitely or at least  is
very  lengthy.   And  if  the measure  of  the  loss  of  use  is
prevailing car rental charges even though the plaintiff does  not
actually  rent a substitute vehicle (and could not afford  to  do
so)  the loss of use recovery can readily become both unrealistic
and unfair.  No reasonable person rents a passenger vehicle on  a
long-term basis at retail weekly or monthly rates.
          I  would  resolve this problem by limiting the  use  of
rental charges that are not incurred as a measure of loss of  use
damages  to  the period of time that it would take  a  person  of
ordinary means to buy a substitute vehicle.  Beyond that  period,
if  the  impecunious plaintiff incurs actual damages that  exceed
          prejudgment interest  car pool and public transportation costs,
for  example   they  may  be recovered  as  well.   But  allowing
unincurred  rental  charges  to  run  on  a  long-term  basis  is
unrealistic   and  unreasonable  because,  as  stated,   no   one
reasonably incurs them on a long-term basis.
          In  the  present case I can see no basis  for  allowing
unincurred rental charges for more than a month.  Given that  the
lowest figure for a months rental was $499 (and choosing the  low
figure for an eight-year-old car seems right) and that there  was
no  evidence of actually incurred loss of use damages, any figure
in  excess  of  that  sum  for loss of use  would  be  excessive.
Accordingly, I would order a remittitur to $499 for the  loss  of
use award.
          In all other respects I agree with todays opinion.
     1     In addition to suing Kenai Chrysler Center, Inc.,  the
Denisons  named DaimlerChrysler Insurance Agency as a  defendant.
For  convenience,  we  refer to both defendants  collectively  as
Kenai Chrysler.

     2    AS 45.50.471-.561.

     3     We review summary judgment rulings de novo.  Parker v.
Tomera,  89  P.3d  761, 765 (Alaska 2004).  Summary  judgment  is
appropriate when there is no genuine issue of material  fact  and
the moving party is entitled to judgment as a matter of law.  Id.
In  reviewing the record, we draw all inferences in favor of  the
non-moving party.  Id. Once the moving party satisfies its burden
of  showing  a  lack of genuine issues of material fact  and  its
right  to  judgment as a matter of law, the non-moving party  can
avoid  summary  judgment  only  by offering  evidence  reasonably
tending  to dispute or contradict the movants evidence  and  thus
demonstrate  that a material issue of fact exists.  Id.  (quoting
State,  Dept of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska
1978)).   We may affirm a grant of summary judgment on any  legal
basis  appearing in the record.  Martinez v. Ha,  12  P.3d  1159,
1162  (Alaska 2000) (citing Denardo v. GCI Commcn Corp., 983 P.2d
1288, 1290 (Alaska 1999)).

     4    See Restatement (Second) of Contracts  13 (1981).

     5    Pappert v. Sargent, 847 P.2d 66, 69 (Alaska 1993).

     6    Id. at 70.

     7    Id. at 69.

     8    Restatement (Second) of Contracts  13, cmt. a (1981).

     9     Although Kenai Chrysler advances a conclusory argument
that  the legal guardianship order did not establish constructive
notice  in  this case, the company cites no authority to  support
this conclusion.

     10    The Emporium v. Boyle, 7 Alaska 80, 82 (1923).

     11    Id. at 84.

     12    Id.; accord Huntington Natl Bank v. Toland, 594 N.E.2d
1103, 1105 (Ohio  App. 1991) ([T]he probate record of judgment is
deemed  to provide constructive notice to the world of the  wards
legal disability.).

     13    Restatement (Second) of Contracts  13, cmt. a (1981).

     14    Restatement (Second) of Contracts  13, cmt. d (1981).

     15     We  also  note  that  Dorothy  Denison  unequivocally
informed  Kenai Chrysler of the guardianship within two  days  of
the  sale,  when she tried to return the car.  And in any  event,
the  Denisons  inability to prevent David from driving  the  Neon
after Kenai Chrysler refused to accept the car has no bearing  on
the guardianships validity earlier, or when David actually signed
the contract.

     16    Alaska Constr. Equip., Inc. v. Star Trucking, Inc., 128
P.3d 164, 169 (Alaska 2006).

     17     Id.  (citing Ben Lomond, Inc. v. Campbell,  691  P.2d
1042, 1047 (Alaska 1984)).

     18     Id.  at 169-70.  We have nevertheless cautioned  that
damages for lost use may not be awarded together with prejudgment
interest  for  damages representing permanent lost  value,  since
such  an  award would give the plaintiff a double recovery.   See
id.  at 170 (citing State v. Stanley, 506 P.2d 1284, 1295 (Alaska
1973)).   In the present case, however, Kenai Chrysler  does  not
challenge the superior courts award on this basis.

     19    State v. Stanley, 506 P.2d 1284, 1293 (Alaska 1973).

     20    Alaska Pattern Jury Instruction No. 20.16 reads:

          The (first, second, etc.)   item  of  claimed
                                   loss is the loss  of
                                   use  of  the (insert
                                   item of property).
          The  plaintiff is entitled to be  compensated
          for  the fair value of the use of the (insert
          item   of   property)   during   the   period
          (reasonably  necessary to fix it)  (plaintiff
          was  unable  to use it) (it was held  by  the
          defendant)  (reasonably necessary to  replace
          it).   In  a  moment I will  explain  how  to
          measure the value of the loss of use.
     21    Compare Alaska Pattern Jury Instruction No. 20.16 with
Kenai Chryslers Proposed Instruction and Instruction No. 14.

     22    See Kristich v. State, 550 P.2d 796, 804 (Alaska 1976).

     23    Alaska Pattern Jury Instruction No. 20.18A.

     24    Alaska Civil Rule 19(a) states in part: A person who is
subject  to service of process and whose joinder will not deprive
the  court of jurisdiction over the subject matter of the  action
shall  be  joined as a party in the action if (1) in the  persons
absence  complete relief cannot be accorded among  those  already

     25    Alaska R. Civ. P. 19(a).

     26     We  review  the superior courts rulings on  discovery
issues  for  abuse of discretion.  Coulson v. Marsh  &  McLennan,
Inc.,  973  P.2d  1142, 1146 (1999).  We will find  an  abuse  of
discretion  only  when   we are left with  a  definite  and  firm
conviction,  after  reviewing the whole record,  that  the  trial
court  erred in its ruling.   Melendrez v. Bode, 941  P.2d  1254,
1256   (Alaska  1997)  (quoting  Peter  Pan  Seafoods,  Inc.   v.
Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).

     27    Alaska R. Civ. P. 37(a)(2)(B).

     28     Kenai  Chrysler also asserts that it  sent  a  second
letter to the Denisons, but the Denisons deny having received it.
The  letter  merely reiterated Kenai Chryslers discovery  demands
and  again  threatened a motion to compel.  It therefore  has  no
significant bearing on the motion to compel.

     29    Alaska R. Evid. 612(a).

     30     See  Alaska R. Evid. 612 cmt. (Rule 612 . . . rejects
limitations on the kinds of writings or objects that may be shown
to witnesses to refresh recollection.).

     31    Alaska R. Evid. 612(a).

     32    Alaska R. Evid. 103(a).

     33     Alaska R. Evid. 103(a)(2); see Clement v. Fulton, 110
P.3d 927, 935 (Alaska 2005).

     34    Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska

     35    Alaska R. Evid. 103(d).

     36     In  arguing  this  point, Kenai Chrysler  appears  to
challenge  both  the  trial courts failure to  grant  a  directed
verdict  at  trial  and its earlier denial  of  summary  judgment
against  the  Denisons.   To  the  extent  that  Kenai  Chryslers
challenge  to  the  summary judgment order asserts  an  error  in
interpreting  the UTPA, our discussion of the UTPA  in  the  text
covers the point. To the extent that Kenai Chrysler asserts  that
the  trial  court  erred in denying summary judgment  on  factual
grounds, its challenge to the summary judgment order is barred by
the  cases trial on its merits.  See Larson v. Benediktsson,  152
P.3d 1159 (Alaska 2007).

     37    We have held that a jurys verdict may be overturned on
the  ground of insufficient evidence only if there is no evidence
supporting  the verdict. Nautilus Marine Enters. Inc.  v.  Valdez
Fisheries  Dev.  Assn,  943 P.2d 1201, 1205  n.8  (Alaska  1997).
Interpretation  of the UTPA presents a question of  law  that  we
review independently.  J.M.R. v. S.T.R., 15 P.3d 253, 256 (Alaska

     38    State v. ONeill Investigations, Inc., 609 P.2d 520, 534
(Alaska 1980).

     39    Id.

     40    Id. at 535.

     41    Id.

     42     Id.  (quoting F.T.C. v. Sperry & Hutchinson Co.,  405
U.S. 233, 244-45 n.5 (1972)).

     43     Cf.  Dura-Wood Treating Co. v. Century Forest Indus.,
Inc.,  675  F.2d  745, 755-56 (5th Cir. 1982)  (interpreting  the
Texas   Deceptive  Trade  Practices  Act  and  holding  that   an
allegation  of  breach  of  contract   without  more   does   not
constitute a false, misleading, or deceptive act in violation  of
the DTPA); Dealers Supply Co. v. Cheil Indus., Inc., 348 F. Supp.
2d  579, 591 (M.D. N.C. 2004) (interpreting N.C. Gen. Stat.   75-
1.1, North Carolinas statute prohibiting unfair or deceptive acts
or practices in or affecting commerce and noting that a breach of
contract alone does not give rise to a claim under that statute).

     44    See, e.g., S. Atl. Ltd. Pship of Tenn., L.P. v. Riese,
284  F.3d  518,  539-40  (4th  Cir. 2002)  (holding  under  North
Carolinas  UTPA  that  a partys timing of  its  exercise  of  its
contractual  right to expel a member of the partnership  so  that
the  member would lose the right to be paid for substantial  work
amounted to an unfair trade practice).

     45    Id. at 539.

     46     Regency Nissan, Inc. v. Taylor, 391 S.E.2d  467,  470
(Ga.  App.  1990) (interpreting Georgias Fair Business  Practices
Act,  Ga. Ann. Code  10-1-390 et seq., which prohibits unfair  or
deceptive acts or practices in trade or commerce).

     47    See Douglas M. Zupanec, Annotation, Practices Forbidden
by  State  Deceptive  Practice and Consumer Protection  Acts,  89
A.L.R. 3d 449, 463 (1979).

     48    See, e.g., St. Paul Fire & Marine Ins. Co. v. Ellis  &
Ellis,  262 F.3d 53, 66 (1st Cir. 2001) (noting that the standard
for  conduct that falls within the proscription of Massachusettss
UTPA is notably imprecise, encompassing any actions that attain a
level  of rascality that would raise an eyebrow of someone inured
to  the  rough  and  tumble of the world  of  commerce,  have  an
extortionate  quality  that  gives  it  the  rancid   flavor   of
unfairness, or fall within at least the penumbra of some  common-
law,  statutory,  or  other established  concept  of  unfairness.
(quoting  Commercial Union Ins. Co. v. Seven Provinces Ins.  Co.,
217 F.3d 33, 40 (1st Cir. 2000)).

     49    See ONeill, 609 P.2d at 535.

     50     Ben  Lomond,  Inc. v. Campbell, 691 P.2d  1042,  1046
(Alaska 1984).

     51     In  fact, if the jury found that the Denisons  should
reasonably  have replaced the car within five months, its  $5,000
award  still  would  have been justified under  Goodmans  highest
quoted rental value  $1,200 per month.

     52    Ben Lomond, Inc., 691 P.2d at 1046 (quoting Heacock v.
Town, 419 P.2d 622, 623-24 (Alaska 1966)).

     53     Id.  (quoting Haskins v. Shelden, 558 P.2d  487,  494
(Alaska 1976)).

     54    Id. at 1047.

     55     Id.  (citing ERA Helicopters, Inc. v. Digicon Alaska,
Inc.,  518  P.2d  1057,  1059-60 (Alaska  1974)  and  Gregory  v.
Padilla, 379 P.2d 951, 956 (Alaska 1963)).

     56    Id. (citing Gregory, 379 P.2d at 956).

     57    Id. at 1044.

     58    Id. at 1045.

     59    Id. at 1045-46.

     60    Id. at 1046.

     61    Id. at 1047 (quoting Gregory, 379 P.2d at 956).

     62    Id.

     63    Id.

     64     See, e.g., United Truck Rental v. Kleenco Corp.,  929
P.2d  99,  110 (Haw. App. 1996); Persinger v. Lucas,  512  N.E.2d
865,  869  (Ind. App. 1987); Moxley v. Cole, 736 So. 2d 249,  252
(La. App. 1999).  But see Whitehead v. Kan. City S. R.R., 758 So.
2d 211, 221 (La. App. 2000); Lenz v. Cameron, 674 P.2d 1101, 1103
(Mont. 1984); Howard v. Holiday Inns, Inc., 280 S.E.2d 204  (S.C.
1981),  overruled on other grounds by ONeal v. Bowles, 431 S.E.2d
555  (S.C. 1993); Elias v. Mr. Yamaha, Inc., 33 S.W.3d  54  (Tex.
App.  2000);  Nashban Barrell & Container Co. v.  G.  G.  Parsons
Trucking Co., 182 N.W.2d 448, 454 (Wis. 1971).

     65    Kenai Chrysler also advances a conclusory argument that
UTPA  treble  damages, like punitive damages, should properly  be
left  to  the jury instead of being awarded by the court.   Apart
from  being inadequately briefed, this argument seems  to  ignore
the  1998  amendment to Alaskas UTPA, which makes treble  damages
mandatory  for violations of the UTPA.  See AS 45.50.531(a);  see
also ch. 96,  3, SLA 1998.

     66    AS 45.50.531(a).

     67    Id.

     68    AS 45.50.531(i).

     69    AS 45.50.531(a).

     70    See Judiciary Committee Report on HCSCS for Senate Bill
No.  352,  House  Journal Supp. No. 10 at 2, 1970  House  Journal
(explaining that the treble damages provision is a long  standing
tool  in consumer matters, used to deter fraud, encourage injured
parties to bring suit, and compensate parties for their trouble).

     71     AS 45.50.537(a) provides: In an action brought  by  a
private   person  under  AS  45.50.471-45.50.561,  a   prevailing
plaintiff  shall be awarded costs as provided by court  rule  and
full reasonable attorney fees at the prevailing reasonable rate.

     72      We   independently   review  the   superior   courts
interpretation of the UTPAs attorneys fee provision, see Halloran
v.  State,  Div.  of Elections, 115 P.3d 547, 550 (Alaska  2005).
But  we  review the amount of the fee award itself for  abuse  of
discretion.   Marsingill v. OMalley, 128 P.3d  151,  156  (Alaska

     73     For example, we have affirmed a trial courts decision
that  a  prevailing partys fees were reasonable even though  they
totaled  twice the amount charged to the losing party by its  own
attorney.   Gamble  v.  Northstore Pship,  28  P.3d  286,  289-90
(Alaska   2001)   (construing  a  contract  provision   regarding
attorneys  fees); see also Hunsicker v. Thompson, 717  P.2d  358,
359  (Alaska  1986) (discussing attorneys fees awards  to  public
interest litigants under Civil Rule 82).

     74    See Alaska R. Civ. P. 82(b)(1) & (2).

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

     76    AS 13.26.131(d).

     77    Thomas v. State, 391 P.2d 18, 20 (Alaska 1964).

1    506 P.2d 1284, 1292 (Alaska 1973).

     2    128 P.3d 164, 169 (Alaska 2006).

     3     514  P.2d  236, 238 & n.6 (Alaska 1973);  see  Nashban
Barrel  & Container Co. v. G.G. Parsons Trucking Co., 182  N.W.2d
448,  453-54 (Wis. 1971) (noting that several courts surprisingly
do  not  require an actual rental and adopting rule that  damages
for  loss  of  use when vehicle is not repairable are recoverable
during  period reasonably required for replacement in  an  amount
equal  to  that  which was actually expended . . . provided  such
amount was not unreasonable).

     4    See Star Trucking, 128 P.3d at 169.

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