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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Egner v. Talbot's, Inc. (07/31/2009) sp-6394

Egner v. Talbot's, Inc. (07/31/2009) sp-6394

     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


CAROL EGNER, f/k/a CAROL )
BURNS, and f/k/a CAROL CHURCH, ) Supreme Court No. S-12714
a shareholder in Talbots, Inc., )
) Superior Court No. 1KE-06-201 CI
Appellant, )
) O P I N I O N
v. )
) No. 6394 - July 31, 2009
TALBOTS, INC., an Alaska corpor- )
ation; JEFFREY P. McNULTY, )
president of Talbots, Inc.; NANCY )
J. McNULTY, director of Talbots, )
Inc.; JANE T. CHURCH; and JANET )
MINNICH f/k/a JANET CHURCH, )
)
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Trevor N. Stephens, Judge.

          Appearances:    Paul  D.   Kelly,   Kelly   &
          Patterson, Anchorage, and Steven W. Edmiston,
          Invicta Law Group, PLLC, Seattle, Washington,
          for   Appellant.   Alexander  J.  Hildebrand,
          Baxter  Bruce  & Sullivan P.C.,  Juneau,  for
          Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Alleging  denial  of her rights as  a  shareholder  and
asserting  other  claims concerning ownership of  Talbots,  Inc.,
Carol  Egner sued Talbots, Inc., her mother, her sisters,  and  a
brother-in-law  in  2006.   The  defendants  moved  for   summary
judgment,  arguing that Carol had never been a  shareholder  and,
alternatively,  that the contract statute of  limitations  barred
her claims.  The superior court granted complete summary judgment
to the defendants on the statute of limitations issue.
          We affirm.  We hold that Carol was on inquiry notice no
later  than  1986 that her status as a shareholder was  disputed.
We  also hold that her failure to make reasonable inquiry  within
the  applicable  statutes  of limitations  precludes  all  claims
related to her purported shareholder status.
II.  FACTS AND PROCEEDINGS
          This case concerns claims relating to the ownership  of
Talbots,  Inc.,  a  corporation  that  owns  Talbots,  a  general
hardware  and lumber store in Ketchikan.1  In 2006 Carol (Church)
Egner  sued  the  corporation, Jane Church, Nancy McNulty,  Janet
Minnich, and Jeffrey McNulty; her complaint alleged that she  was
a  shareholder  of Talbots and that the defendants  had  violated
various duties allegedly owed to Carol.  Carol is the daughter of
Jane Church and the late James Church Sr.; Carol is the sister of
Janet (Church) Minnich and Nancy (Church) McNulty and the sister-
in-law  of Jeffrey McNulty.  We refer collectively to the parties
Carol  sued  as  the  defendants.  We  refer  interchangeably  to
Talbots and Talbots, Inc.
          In  1949  Jane  Churchs parents sold all three  hundred
issued  shares  in Talbots, Inc. to Jane and her  husband,  James
Church  Sr.  James Church Sr. received 153 shares; Jane  received
147.   Jane  and  James Sr. were the directors  and  officers  of
Talbots,  Inc. from 1949 to 1978.  During this period  James  Sr.
managed  the  business and handled all corporate matters,  except
those requiring Janes signature.
          Jane  and  James Sr. had four children:  Janet,  Nancy,
Carol, and James Jr.   All four children intermittently worked at
Talbots between 1958 and 1978.  Carol stated in an affidavit that
she  began working at Talbots in 1960 and that 1964 was her first
year of recorded earnings at the store.
          Carol  also stated in affidavits that her father, James
Sr., frequently told her that she owned stock in Talbots; that on
at  least six occasions before 1978 she was offered the option of
a  wage increase or stock and that she chose the stock; and  that
on  at  least  three occasions (the last of which was  in  1968),
James Sr. showed her a stock ledger that indicated that she owned
shares of Talbots stock.  The original stock ledger is not in the
record; it was destroyed in a fire sometime before 1978.
           James  Jr.  stated in an affidavit that  he  also  had
accepted offers from James Sr. to take Talbots stock in  lieu  of
wage increases during the same time period.
          Janet,   Carols  oldest  sibling,  testified   in   her
deposition  that  she worked full- or part-time at  Talbots  from
1958  through  1984, with the exception of three gaps,  one  from
late  1965 though early 1968, and two in the early 1970s.  Janets
responsibilities   included  daily   bookkeeping,   making   bank
          deposits, and placing orders for the store.  She assumed a
managerial role after James Sr.s death in 1978.  Janet  testified
that she believed her parents owned Talbots in its entirety, that
she  was never aware of any transfer of shares or offer of  stock
to any of her siblings, and that any transfer or offer would have
been discussed by the entire family.
          When  James Sr. died in 1978, his wife, Jane, inherited
his  shares.  Jane testified at her deposition that she  was  the
sole shareholder of Talbots after James Sr.s death.  Carol stated
in  an  affidavit  that  she  had asked  Jane  for  Carols  stock
certificates after James Sr.s death, and that Jane had  responded
by saying both that Carol did not own any Talbots stock, and that
Jane and Janet were taking care of things and that it took time.
          The stock ledger produced in discovery after Carol sued
in  2006  had  been  generated in 1979, after James  Sr.s  death.
Jeffrey McNulty, Nancys husband, testified in his deposition that
because the defendants could not find a stock transfer ledger for
the  1949-1979 period, the share certificates and stock  transfer
ledger were recreated with entries dating from 1975 on, based  on
James  Sr.s  1975  tax information.  These reconstituted  records
appear  to  support the defendants contentions that Jane  already
owned 147 shares before James Sr.s death, that she inherited  his
153  shares  when  he died, and that she was therefore  the  only
shareholder as of 1979.
          Three share certificates, created in 1979 but backdated
to  1975,  were for 153, 147, and 300 shares, respectively.   The
defendants  contend  on appeal that there were  only  300  shares
total, not 600 as the certificates imply.  They contend that  the
third certificate, for 300 shares, was erroneously backdated;  it
should  have been dated January 1979 and was intended to  reflect
Janes  ownership of the total of all 300 shares evidenced by  the
first two certificates after her husbands shares were transferred
to  her  following  his  death in 1978.   The  third  certificate
potentially supports Carols contention that there were more  than
300  shares, and that she owned some of them even if  Jane  owned
300 after James Sr. died.
          In  March  1980  Jane, Janet, Nancy, and Carol  entered
into  a  five-year  voting trust agreement  by  which  the  three
sisters  were  to  vote Janes shares.  This agreement  gave  each
sister  a one-third interest in the shares, including the  rights
to  vote  and manage those shares, but not the right  to  collect
dividends.  The agreement stated that Jane was the party  of  the
first  part and that the first party owned all of the  shares  of
Talbots.  As part of this agreement, Carol, Nancy, and Janet were
collectively  issued  one 300-share certificate  dated  March  7,
1980.   Carol  later  asserted in an  affidavit  that  she  first
learned  in 2006 (when she received defendants motion for summary
judgment), that this 300-share certificate had been issued.
          In  November  1980 the then-board (Jane, Janet,  Nancy,
and Carol) met and determined that the voting trust agreement was
not  working and agreed that Jane and Janet would manage  Talbots
until other arrangements could be made.  Carol signed the minutes
of that meeting.  Janet and Nancy signed the back of the March 7,
1980  share certificate in order to transfer the 300 shares  back
to  Jane,  but  Carol  did not sign.  Carol later  stated  in  an
affidavit  (filed in response to the defendants summary  judgment
motion) that she was not advised of what other arrangements would
be  made,  and that she did not sign and would not have signed  a
document  dissolving the voting trust agreement if she  suspected
that  it  would terminate her interest in Talbots.   By  its  own
terms, the voting trust agreement expired five years after it was
executed in 1980.
          In a series of transactions between 1983 and 1986, Jane
sold  her shares in Talbots to Nancy and Nancys husband,  Jeffrey
McNulty.   Carol  stated in paragraph 23 of her August  10,  2006
affidavit, filed in response to defendants statute of limitations
summary  judgment motion, that she did not find out that in  1983
my mother sold Talbots to Nancy and Peter McNulty until 1986.
          In  July 1995 Jane and Janet visited Carol at her  home
and  asked  her  to sign a document.  The parties disagree  about
what  the  document  was. Carol stated in an affidavit  that  the
document was a stock certificate made out to Carol Burns  (Carols
former name) and that it represented that she owned at least  100
shares  of  Talbots stock.  She also stated that Jane  and  Janet
asked  her to sign the back of the document for tax purposes  and
that,  when  Carol asked to see the certificate, they refused  to
give it to her and physically prevented her from taking it.
          The individual defendants stated in affidavits that the
document  was the stock certificate relating to the voting  trust
agreement.   The certificate transferred the 300 shares  back  to
Jane.  Nancy testified in her deposition that she asked Jane  and
Janet to ask Carol to sign the certificate.  Although Nancy  also
testified that, after consulting with the corporations attorneys,
she   and  Jeffrey  had  concluded  that  Carols  signature   was
unnecessary,  Nancy stated in an affidavit that she wanted  Carol
to sign to cur[e] any perceived problems with the certificate.
          In November 2005 Carol wrote to Nancy to request a list
of  shareholders for Talbots and any stock certificates issued to
Carol.  Jane responded by letter to Carols request, stating  that
Carol  had  never owned any shares of Talbots.  In February  2006
Carols attorney made a written request on Carols behalf to review
the corporate records and documents for Talbots.  An attorney for
Talbots responded, denying Carols request on the ground Carol was
not a shareholder.
          In  May  2006  Carol  sued  Talbots,  her  mother,  her
sisters,  and her brother-in-law.  Her complaint asserted  claims
for: (1) failure to allow full inspection of corporate books  and
records;2  (2)  failure to allow Carol to exercise various  other
shareholder  rights  under  the Alaska  corporations  code;3  (3)
breach of fiduciary duty; (4) conversion and misappropriation  of
corporate  funds;  and (5) conversion of and trespass  to  Carols
shares.
          The defendants moved for summary judgment, arguing that
Carols claims should be dismissed either because they were barred
by  the six-year contract statute of limitations or because Carol
was  not  a  shareholder.4   The superior  court  denied  summary
judgment  as  to  whether Carol was a shareholder,  holding  that
there were genuine issues of material fact as to that issue.   It
          nonetheless granted complete summary judgment for the defendants,
holding that the pertinent statutes of limitations barred all  of
Carols claims.  It therefore entered judgment against Carol.
          Carol appeals, arguing that the superior court erred in
granting  summary  judgment on the statute of limitations  issue.
She asks us to remand for an evidentiary hearing.
III. DISCUSSION
     A.   Standard of Review
          We review summary judgment decisions de novo, affirming
if  there  are  no  genuine  issues  of  material  fact  and  the
prevailing  party is entitled to judgment as a  matter  of  law.5
In  reviewing the grant of summary judgment, we view the facts in
the  light  most  favorable  to the party  against  whom  summary
judgment  was  entered.6   We have held  that  [t]he  evidentiary
threshold to preclude the entry of summary judgment is low.7
          Under the discovery rule, the date on which the statute
of limitations begins to run is a question of fact.8  But it is a
legal   question  whether  undisputed  facts  establish  that   a
plaintiff  is on inquiry notice.9   Whether a claim  is  actually
barred by the statute of limitations is a question of law.10   We
review  questions  of law de novo, adopting the  rule  that  best
reflects precedent, reason, and policy.11
     B.   Whether  Carol Was Put on Inquiry Notice at  Least  Six
          Years  Before  She  Sued in 2006 that  Her  Shareholder
          Status Was Disputed
          
          The  superior court held that the defendants  presented
sufficient evidence to make out a prima facie case that Carol was
on inquiry notice as of 1986 at the latest, and that Carol failed
to demonstrate that there was a genuine dispute of material fact.
The court wrote:
          [A]ny   causes   of  action  concerning   her
          [shareholder] status in Talbots, Inc. accrued
          in 1978.  By that time she had discovered, or
          reasonably   should  have   discovered,   the
          existence  of all elements essential  to  any
          such cause(s) of action.  At the latest,  any
          such  cause(s) of action accrued in 1986 when
          she  also  knew that Ms. Church had sold  her
          stock  to  . . . Ms. McNulty and Mr. McNulty,
          that  they claimed that Ms. McNulty  and  Mr.
          McNulty  were  the  sole owners  of  Talbots,
          Inc.,  and that Ms. McNulty had excluded  her
          from  the  business premises.  There  are  no
          genuine  issues  of  material  fact  in  this
          regard.
          
(Footnote omitted.)  The superior court therefore held  that  the
defendants  were entitled to judgment as a matter of law  on  the
statute   of  limitations  issue  and  entered  complete  summary
judgment for the defendants.
          Carol  argues  that  it  was  error  to  grant  summary
judgment on the statute of limitations issue.  She contends  that
when  the  statute of limitations began running is a question  of
fact that should not be resolved on summary judgment.
          Carol  filed  her complaint in May 2006.   The  longest
potentially  applicable statute of limitations was  the  six-year
statute  for contract causes of action accruing before August  7,
1997.12   The essential question here is therefore whether  Carol
was  put  on  notice  before May 2000 that she  should  begin  an
          inquiry to protect her rights.
          When  a  cause of action accrues ordinarily presents  a
question  of  fact13  that  must be resolved  at  an  evidentiary
hearing.14   Resolution  of  the issue  on  summary  judgment  is
appropriate   only   if  the  superior  court   has   before   it
uncontroverted  facts regarding when the statute  of  limitations
began running.15  We apply the discovery rule to determine when a
cause  of action accrues if an element of the cause of action  is
not immediately apparent.16  Under the discovery rule, a cause of
action accrues when a reasonable person has enough information to
alert  that person that he or she has a potential cause of action
or  should begin an inquiry to protect his or her rights.17   The
question  here  is  therefore whether Carol was  put  on  inquiry
notice before May 2000.
          A  party  moving for summary judgment bears the initial
burden of proving through admissible evidence (1) the absence  of
genuine fact disputes, and (2) its entitlement to judgment  as  a
matter of law.18
          Here  the defendants filed exhibits with their  summary
judgment  motion.   The exhibits included  James  Sr.s  will  and
related documents and the 1980 voting trust agreement and related
documents.   The  voting trust agreement stated  that  the  first
party . . . owns all of the shares of Talbots, Inc. and described
Jane  Church  as the party of the first part.  Carol signed  that
agreement  in 1980.  Each of the four individual defendants  also
filed  affidavits.  They collectively asserted  that  Jane  owned
100%  of  the  shares and sold them in 1983 to Nancy and  Jeffrey
McNulty.   The  exhibits and affidavits made out  a  prima  facie
showing  that  Carol was not a shareholder and had never  been  a
shareholder  and that the store (or perhaps the corporation)  was
sold to Nancy and Jeffrey McNulty in 1983.  They also potentially
established that Carol, having signed the voting trust  agreement
in 1980, was on notice as of 1980 that she owned no shares in the
corporation.    On  the  timeliness  issue,  defendants  asserted
generally  that  all of Carols claims accrued  long  before  (and
certainly more than six years before) she filed suit in 2006.
          Once  the  movant has made out a prima facie case,  the
nonmovant,  to  avoid summary judgment, must set  forth  specific
facts showing that there is a genuine dispute of material fact.19
The  evidence  adduced by the defendants in  moving  for  summary
judgment  obliged Carol to demonstrate that there was  a  genuine
dispute  of material fact about (1) whether she was a shareholder
and  (2)  whether, even after she signed the 1980 agreement,  she
was unaware that her shareholder status was disputed.
          As  to  the  first issue, she succeeded:  the  superior
court  denied  summary judgment to the defendants  on  the  issue
whether Carol was a shareholder.  This issue is not before us  on
appeal, so we assume that the superior court correctly held  that
there  was  a genuine factual dispute about whether Carol  was  a
shareholder.
          As  to  the  second  issue,  we  conclude  that  it  is
controlled  by the 1980 voting trust agreement Carol  signed  and
the  admissions  made in her August 10, 2006  affidavit  opposing
summary judgment on the timeliness issue.
          In  paragraph 12 of that affidavit, Carol stated  that,
after James Sr.s death in February 1978, Jane told me that I  did
not  own  any  Talbots stock.  This averment was an admission  by
Carol  that in 1978, Jane had explicitly told her that Carol  was
not  a  shareholder  and  had thus explicitly  repudiated  Carols
alleged  status  as  a shareholder.  Jane was  then  a  director,
officer, and the sole or majority shareholder of Talbots.
          The  voting trust agreement described Jane as the party
of  the  first part and stated that the first party owned all  of
the  shares  of  Talbots.  Carol signed that agreement  in  March
1980.  The agreement undisputably put her on notice that Jane was
the sole shareholder of Talbots.
          Paragraph  23 of Carols affidavit describes what  Carol
claims  she  knew about the sale of Talbots to the  McNultys  and
also describes her December 1986 confrontation with Nancy at  the
store:
          I  did  not  find out that in 1983 my  mother
          sold  Talbots to Nancy and [Jeffrey]  McNulty
          until  1986.   Sometime before  Christmas  in
          1986  I  went to the Talbots store to  invite
          Nancy  and  [Jeffrey] McNulty to a  Christmas
          open  house  I was holding.  At that  time  I
          believed   they  were  merely  managing   the
          Talbots  store.   During that  meeting  Nancy
          took  me into the Talbots office and told  me
          to  get  out of her store and never  to  come
          around again.
          
(Emphasis added.)  As to whether Carol was aware that there was a
dispute  about  whether  she  was a shareholder,  the  emphasized
sentence contains Carols admission that she became aware in  1986
that  Jane had sold Talbots to Nancy and Jeffrey in 1983.   Carol
also  stated  in  another affidavit that in the spring  or  early
summer of 1980 Jane told Carol that Nancy might purchase Talbots,
and  that  Carol told Jane that Carol was delighted at  the  news
because  I  would then get my Talbots shares.  By 1986 Carol  was
aware  both  that  the sale had occurred and  that  she  had  not
received  any  Talbots  shares after the sale.   That  awareness,
coupled  with what Carol admitted Jane told her in 1978 and  with
the terms of the voting trust agreement Carol signed in 1980, put
her  on  notice  that  the corporation did  not  consider  her  a
shareholder and was not treating her as a shareholder.
          Nancys demand that Carol get out of her store and never
.  .  .  come  around  again read in isolation  might  permit  an
inference that Nancy was speaking colloquially, not possessively,
about  her store, even though the first sentence of paragraph  23
seems  to  preclude any such inference.  But even if the December
1986  confrontation did not put Carol on notice that Talbots  was
actually  Nancys, the first sentence in paragraph  23  of  Carols
affidavit established that Carol actually knew in 1986 that Carol
was  not  an  owner of Talbots.  That sentence was  an  admission
establishing  that,  as of 1986, Carol had  actual  knowledge  of
facts  putting her on notice that she needed to make  inquiry  to
protect  whatever  shareholder rights  she  thought  she  had  in
Talbots.
          Summary judgment was a permissible method for disposing
of claims relating to conduct that occurred within the applicable
limitations  periods  after Carol was put on  inquiry  notice  no
later  than  1986.20  We held in Mine Safety  Appliances  Co.  v.
Stiles   that   although  summary  judgment  is   ordinarily   an
inappropriate  mechanism for determining whether the  statute  of
limitations  has run, in cases in which there are  uncontroverted
facts that determine whether a party reasonably should have begun
an  inquiry to protect his or her rights, the court may make  the
determination as a matter of law.21
          The  uncontroverted facts establish that Carol was  put
on  inquiry notice no later than 1986.  She knew that Talbots had
been  sold, that she was not considered an owner of Talbots, that
her  shareholder status was denied or disputed,  that  she  might
have  a cause of action, and that she should begin an inquiry  to
protect her rights.22
          Because  any  applicable statute of  limitations  first
began  running  no  later  than  1986,  the  longest  conceivably
applicable statute of limitations has long since expired.23   Our
conclusion that the cumulative effect of the 1978, 1980, and 1986
events placed Carol on inquiry notice makes it unnecessary for us
to consider whether those events were independently sufficient to
place her on inquiry notice.
          Carol  argues  that she was a director of  Talbots  and
that  the  bylaws  require that each director own  one  share  of
stock,  that  she received mixed messages from Jane  after  James
Sr.s death in 1978, and that the 1980 voting trust agreement  was
ambiguous.24   She  appears  to contend  that  her  status  as  a
director, the mixed messages, and the alleged ambiguity create  a
genuine  issue of material fact about whether she was on  inquiry
notice.   As the superior court concluded, Carols assertions  may
preclude summary judgment on the issue whether she was in fact  a
shareholder.   But  the  relevant  terms  of  the  voting   trust
agreement  are  not ambiguous.  They and her admission  that  she
knew  in 1986 that Jane had sold Talbots to Nancy in 1983,  taken
with  Janes  1978  statement that Carol had no stock,  require  a
conclusion that Carol had a duty to inquire.  The presence  of  a
genuine  fact  dispute about Carols shareholder status  does  not
create a genuine fact dispute about whether Carol knew enough  to
put  her  on  inquiry notice, and thus did not  excuse  her  from
making a reasonable inquiry to protect her rights.
            Carol  argues that she had a lesser burden to conduct
an  inquiry to protect her rights, because as a shareholder,  she
was  owed  fiduciary  duties.  We have never adopted  that  rule,
although other jurisdictions have.25
          We  do not need to decide here whether to adopt such  a
rule, because Carol was put on inquiry notice no later than 1986,
even  assuming a fiduciary relationship between the parties  were
deemed  to  have  lessened Carols duty of  inquiry.   Her  actual
knowledge as of December 1986 was completely inconsistent with  a
belief  that  she  was  a  shareholder or  that  the  corporation
considered her a shareholder.
          Moreover,  there is no indication that  the  defendants
          concealed the true state of corporate ownership from her, that
the  1986  events  were equivocal, or that Carol  relied  on  any
fiduciary relationship when she failed to make any inquiry.
          Whether  in a given dispute a reasonable inquiry  would
have  been  productive potentially raises a question  of  fact.26
But   there   is  no  indication  an  inquiry  would  have   been
unproductive  here, and Carol asserts only that she  was  not  on
inquiry notice, not that inquiry would have been unsuccessful  or
futile.   A reasonable inquiry would have confirmed one of  these
alternative scenarios: (1) Carol was not a shareholder,  (2)  she
was  a shareholder, or (3) there was a dispute about whether  she
was  a  shareholder.  In holding that Carol was on inquiry notice
no  later than 1986 and in barring her claims, the superior court
necessarily  determined that, had Carol reasonably inquired,  the
corporation  would  have  denied that she  was  a  shareholder.27
Uncontroverted  facts  support  that  proposition.    Given   the
contemporaneous  evidence of the 1978 and  1986  events  and  the
terms  of the 1980 agreement, and the defendants sworn assertions
that Carol was not and had never been a shareholder, there is  no
basis for thinking a timely inquiry would have led to a corporate
response  confirming  that Carol was  a  shareholder.   Carol  is
therefore deemed to have been on notice of all claims arising out
of  the denial a reasonable inquiry would have provoked.  Summary
judgment   was  the  appropriate  mechanism  for  resolving   the
untimeliness of those claims.28
          We  conclude  that Carol was put on inquiry  notice  no
later than 1986 that her shareholder status was disputed.  All of
the  potentially applicable statutes of limitations therefore bar
any shareholder-related claims that Carol could have then brought
(including  those she brought in 2006 and those listed  above  in
footnote  four)  after making inquiry.  We therefore  affirm  the
defendants  summary judgment as to all claims  involving  alleged
conduct  or losses that occurred during or before her 1986  store
visit.   We  separately address any possible claims for post-1995
conduct or losses relating to her shareholder status.
     C.   The Effect of the 1995 Events
          We  next  consider  whether the  1995  events  had  any
bearing  on  the  timeliness  of any  of  Carols  claims.   Carol
contends  that  the  1995 events, which she  characterizes  as  a
meeting  at  which  Jane and Janet asked  her  to  sign  a  stock
certificate  in  Carols  name,  reconfirmed  her  status   as   a
shareholder.  The defendants dispute that characterization of the
document, and alleged below that the certificate related  to  the
voting   trust  agreement.   They  argue  here  that   the   only
permissible inference is that the 1995 events were a repudiation,
not a reconfirmation, of Carols shareholder status.
          The continuing violations doctrine allows plaintiffs to
rely  on  incidents occurring outside the statute of  limitations
period  to  establish  ongoing tort or contract  claims  in  some
circumstances.29  We have applied this doctrine in the context of
shareholder rights actions.30  Carol seems to argue that even  if
earlier  events  put  her  on inquiry  notice,  the  1995  events
reconfirmed  her status as a shareholder, permitting  claims  for
continuing  violations of her shareholder rights.   If  she  were
          correct, at least some of her claims might not be time-barred.31
          The  defendants argue that Carol cannot  prevail  on  a
continuing  violations  theory,  because  events  that   occurred
outside the limitations period established a permanent violation.
We  have  explained  that [t]he permanent  violation  triggers  a
reasonable  persons  awareness of the alleged discrimination  and
the  need  to  assert her rights.  On a subjective  basis,  if  a
plaintiffs  actions  show  that she  knew  her  rights  had  been
violated  by  a  certain  point in time, the  limitations  period
starts  running from that date.32   The presence of  a  permanent
violation  outside the limitations period forecloses a  plaintiff
from invoking the continuing violations doctrine to pursue claims
for  conduct  within  the  limitations  period.   The  continuing
violation doctrine does not exist to give a second chance  to  an
employee  who  allowed  a  legitimate [discrimination]  claim  to
lapse.33
          The superior court held here that because [a] permanent
violation  occurred on or before 1986, the continuing  violations
doctrine  does not apply.  Carol argues that it was error  to  so
hold, because she asserts that a contention there was a permanent
violation raises a factual question that must be resolved  at  an
evidentiary  hearing.   Although  the  inquiry  into  whether   a
permanent   violation  has  occurred  is  subjective  and   fact-
intensive,34 we have never held that it can never be resolved  on
summary judgment.
          The same facts that require a conclusion that Carol was
on  inquiry  notice no later than 1986 also require a  conclusion
that a permanent violation occurred no later than 1986.  The 1978
and   1986  events  and  the  1980  agreement  were  collectively
sufficient  to  trigger[] a reasonable persons awareness  of  the
alleged  [wrongful conduct] and the need to assert her  rights.35
The  allegedly  wrongful conduct was the denial of  Carols  claim
that she was a shareholder.  In effect, there was a denial of her
alleged shareholder status.  We assume for discussions sake  that
some  corporate  conduct  related to share  ownership  might  not
amount  to  a  permanent  violation.  For example,  non-permanent
violations  could account for a continuing failure to pay  annual
dividends   owed  a  shareholder.   In  comparison,   non-payment
resulting  from the claimants removal from the shareholder  rolls
would  arise  out of a permanent change in the claimants  status.
Because  in  that  situation  the continuing  failure  to  pay  a
dividend   would   result  from  the  permanent  violation,   the
continuing  violations doctrine would not allow the  claimant  to
pursue untimely claims accruing out of the permanent violation.
          In  an analogous context, in considering the timeliness
of  employment  claims, some courts look to whether  the  conduct
within  the  statute  of  limitations  period  was  independently
unlawful.  In National Railroad Passenger Corp. v. Morgan,36  the
United  States Supreme Court considered the claims of an employee
who  alleged discrete acts of discrimination both outside of  and
within the applicable statute of limitations periods.37  The Court
held that the continuing violations doctrine permitted background
evidence  about time-barred acts to support claims  for  discrete
acts  that  occurred within the limitations period and that  were
          independently discriminatory.38  But the Court also held that a
time-barred act could not be used to support a claim  unless  the
act that occurred within the statutory period and that formed the
basis for the claim was independently unlawful.39  For example, in
the  employment  context,  a former employee  may  not  introduce
evidence of a time-barred wrongful termination claim to support a
timely claim for denial of employment-dependent benefits, because
it  is  not  independently unlawful to deny  employment-dependent
benefits to a non-employee.40
          We  have not applied the Courts reasoning in Morgan  to
discrimination claims in an employment context.  But such  claims
typically  involve a continuing employment relationship.41   Here
Carol  was  on  notice  by  1986 that  there  was  no  continuing
corporate-shareholder  relationship.  In this  context  it  seems
appropriate   to   consider  whether   the   1995   conduct   was
independently unlawful.
          It  is not independently unlawful for a corporation  to
deny   shareholder   rights  to  non-shareholders.    Proving   a
continuing  violation of her shareholder rights would necessarily
require  Carol  to  prove  that  the  defendants  wrongfully  (or
erroneously) denied Carols shareholder status, a claim for  which
the  statute of limitations has long since expired.   The  denial
that  Carol  was a shareholder was a permanent denial  of  Carols
claim  to  shareholder  status.  That denial  precludes  us  from
relying  on  evidence  of Carols shareholder  status  to  support
claims  for alleged shareholders rights denials occurring  within
the relevant statutory periods.
          Likewise,  the superior court did not err in concluding
that a permanent violation occurred on or before 1986.
          It  does  not matter that the superior court held  that
there  was  a  genuine  fact dispute about whether  Carol  was  a
shareholder.   All of Carols claims are time-barred  because  she
was  on notice of a permanent violation no later than 1986.   The
existence  of  a  permanent violation  means  that  Carol  cannot
recover  on a continuing violations theory.  The 1995  events  do
not  give rise to any claims independent of those she would  have
learned  of  had she made timely inquiry after 1986, and  do  not
involve  independently  wrongful conduct.42    A  reasonable  and
timely  inquiry would have revealed the underlying basis for  any
claims  relating  to her shareholder status  and  the  denial  of
rights she arguably would have had as a shareholder.  This  means
that  none of Carols 2006 claims was timely.  The superior  court
did  not  err in holding that all of Carols claims are barred  by
the applicable statutes of limitations.
IV.  CONCLUSION
          We  AFFIRM  the superior courts final judgment  entered
upon summary judgment for the defendants.
_______________________________
     1    Because this case was resolved on summary judgment, the
superior   court  did  not  make  factual  findings.   Our   fact
description  relies  on  the  superior  court  record,  including
exhibits,  affidavits of parties and other witnesses,  and  party
depositions taken after Carol filed her complaint.  In describing
the  facts, we take reasonable factual inferences in favor of the
nonmovant.   Johns  Heating Serv. v. Lamb,  46  P.3d  1024,  1030
(Alaska  2002).   We  are not finding facts or resolving  factual
disputes.

          The case caption on Carols complaint describes her as a
shareholder  in  Talbots Inc.  Our use of that caption  does  not
imply any conclusion by us that she is in fact a shareholder.

     2    AS 10.06.430.

     3     Carols  complaint  alleged violation  of  these  other
statutory rights: (a) the right to inspect bylaws and amendments,
per  AS  10.06.233;  (b)  the  right to  notice  of  shareholders
meetings,  per AS 10.06.410; (c) the right to view a  shareholder
list,  per  AS  10.06.413; (d) the right  to  receive  an  annual
report,  per AS 10.06.433(a); (e) the right to receive a response
to  a written request for accounting records, per AS 10.06.433(d)
&  (e);  and  (f)  the  right to notice and shareholder  approval
before the sale of corporate assets not in the regular course  of
business, per AS 10.06.568, .570(a)-(b).

     4     The defendants motion also argued that the statute  of
frauds  barred Carols claims.  The superior court denied  summary
judgment as to that argument, and no party appeals that ruling.

     5     Preblich  v.  Zorea, 996 P.2d 730, 733  (Alaska  2000)
(affirming grant of summary judgment because six-year statute  of
limitations  was triggered when client had sufficient information
to know former attorney might have engaged in malpractice).

     6     Brannon  v. Contl Cas. Co., 137 P.3d 280, 284  (Alaska
2006)  (holding  that,  in suit for breach  of  duty  to  defend,
limitations period is equitably tolled until underlying action is
terminated due to final judgment).

     7    Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1032 (Alaska
2002)  (citing  Meyer  v. State, Dept of Revenue,  Child  Support
Enforcement  Div.,  ex  rel. N.G.T., 994 P.2d  365,  368  (Alaska
1999))  (holding that homeowners who sued heating service company
for  alleged negligent failure to repair furnace or warn  of  its
dangerous condition presented sufficient evidence regarding  date
of   discovery   of  defective  condition  to  overcome   summary
judgment); see also Meyer, 994 P.2d at 368 (holding that putative
fathers affidavit stating he did not have sexual intercourse with
plaintiff  in paternity suit within possible period of conception
was  sufficient  to  preclude summary  judgment  despite  genetic
testing indicating 99.98% chance that he was biological father of
child).

     8    Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
725  (Alaska  2006)  (stating that determining  when  statute  of
limitations  begins  to run is question of  fact  that  precludes
superior  court from granting motion to dismiss but  noting  that
once   sufficient  discovery  is  conducted,   the   statute   of
limitations affirmative defense should be resolved in advance  of
trial).

     9    Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292
(Alaska 1988).

     10    Brannon, 137 P.3d at 284.

     11     Law  Offices of Steven D. Smith, P.C. v.  Borg-Warner
Sec. Corp., 993 P.2d 436, 443 (Alaska 1999).

     12    Former AS 09.10.050; ch. 26,  3, 55, SLA 1997.

     13    Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 303
n.19  (Alaska  2006)  (noting that statute of limitations  issues
generally must be resolved pre-trial by the superior court acting
as factfinder, not as a matter of law); Williams v. Williams, 129
P.3d  428,  431  (Alaska 2006) (concluding that  superior  courts
decision  to  hold evidentiary hearing on statute of  limitations
issue  was  proper  because there was genuine issue  of  material
fact);  Palmer  v. Borg-Warner Corp., 818 P.2d 632,  634  (Alaska
1990)  (stating that summary judgment is ordinarily inappropriate
means  of adjudicating statute of limitations issues, but holding
that  it  was  proper  in  this case  because  facts  were  truly
uncontroverted).

     14     Williams,  129 P.3d at 430; Pedersen v. Zielski,  822
P.2d  903, 907-08 (Alaska 1991) (holding that evidentiary hearing
was  necessary  to resolve statute of limitations  issue  because
there were genuine issues of material fact).

     15    Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1033 (Alaska
2002);  Mine Safety Appliances Co. v. Stiles, 756 P.2d  288,  292
(Alaska 1988).

     16    Johns Heating Serv., 46 P.3d at 1031.

     17     Id.  (citing Mine Safety, 756 P.2d at 291); see  also
Roach  v.  Caudle, 954 P.2d 1039, 1041 (Alaska 1998)  (Under  the
discovery rule a cause of action accrues when a person discovers,
or  reasonably  should  have discovered,  the  existence  of  all
elements  essential to the cause of action.  (quoting Cameron  v.
State, 822 P.2d 1362, 1366 (Alaska 1991))).

     18     Alakayak v. British Columbia Packers, Ltd.,  48  P.3d
432, 447-48 (Alaska 2002).

     19    Id. at 448.

     20    See Mine Safety, 756 P.2d at 292.

     21    Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292
(Alaska  1988) (citing Russell v. Municipality of Anchorage,  743
P.2d 372, 375-76 & n.11 (Alaska 1987)).

     22     Cf. id. (It is uncontroverted that Stiles knew he was
hit in the head while wearing a safety helmet designed to protect
against such blows.  The helmet cracked and the suspension  clips
broke  upon  impact.  Parker investigated the  accident  and  the
result  of  that  investigation was available to  Stiles  shortly
after the accident.  In addition, Parkers safety officer kept the
helmet  for  two  years  where it was available  for  inspection.
These facts were available to Stiles the day of the accident.).

     23    Six years is the longest limitations period potentially
applicable to Carols claims.  Former AS 09.10.050, amended by ch.
26,   3, 55, SLA 1997.  Statutory, tort, and contract claims  are
subject   to   one-,  two-,  three-,  or  six-year  statutes   of
limitations.   AS  09.10.053, .070, .090;  former  AS  09.10.050,
amended by ch. 26,  3, 55, SLA 1997.

     24     We  noted above that  Jane told Carol both  that  she
owned no Talbots stock  and that Jane and Janet were taking  care
of  things and that it took time.  We conclude that the  relevant
terms of the voting trust agreement are not ambiguous.

     25     See  Bacon v. Rives, 106 U.S. 99, 107 (1882) (holding
that statutes of limitations do not accrue against beneficiary of
trust  until beneficiary receives notice that trust is closed  or
that trustee has disavowed trust); Bennett v. Hibernia Bank,  305
P.2d  20,  32-33  (Cal. 1957) (holding that the statutory  period
does  not commence to run until the stockholder has knowledge  or
notice  that  his  rights  are  denied  or  that  his  status  is
repudiated  or  controverted by the corporation because  where  a
fiduciary  relationship  exists,  facts  which  would  ordinarily
require  investigation  may  not excite  suspicion);  Maguire  v.
Hibernia  Savings  &  Loan Socy, 146 P.2d 673,  681  (Cal.  1944)
(holding  that  in fiduciary relationship statute of  limitations
does  not  begin to run until stockholder has knowledge that  his
rights  are  denied  or status controverted by the  corporation);
Schneider  v. Union Oil Co., 6 Cal. App. 3d 987, 994  (Cal.  App.
1970)  (holding  that  until  shareholder  has  notice  of   some
unequivocal act that his rights were being disputed he or she has
right to regard [the corporation] as holding her interest in  the
corporation in trust for her); Leek v. Alliance Fund,  Inc.,  806
P.2d  491, 494-95 (Kan. App. 1991) (holding that cause of  action
to  enforce distribution of corporate dividends payable on demand
does  not accrue until there has been demand and refusal); Yeaman
v.  Galveston City Co., 167 S.W. 710, 723-24 (Tex. 1914) (holding
that  in  corporation-shareholder fiduciary relationship statutes
of  limitation  have no application until there is  a  clear  and
unequivocal  disavowal  of  the trust, and  shareholder  receives
notice of that disavowal).

     26    Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991).

     27     We  have not yet determined who bears the  burden  of
demonstrating  the  potential futility or  productiveness  of  an
inquiry that was not made.  On summary judgment, once the  moving
party  has  made out a prima facie case that there is no  genuine
issue  of material fact and that the moving party is entitled  to
judgment as a matter of law, the nonmoving party bears the burden
of  demonstrating  the existence of a genuine issue  of  material
fact.   Alakayak v. British Columbia Packers, Ltd., 48 P.3d  432,
447-48  (Alaska 2002); see also Johns Heating  Serv. v. Lamb,  46
P.3d  1024, 1033 n.29 (Alaska 2002).  But it is unclear,  once  a
genuine  issue  of  material fact has  been  shown,  whether  the
plaintiff  must demonstrate that a reasonable inquiry would  have
been  futile,  or whether the defendant must demonstrate  that  a
reasonable  inquiry  would have been productive.   In  this  case
Carol offered no evidence that an inquiry would have been futile,
and  the  defendants offered sufficient evidence that an  inquiry
would  have  been  productive.  It is  therefore  unnecessary  to
determine who bears the burden, because the result here would  be
the same under either standard.

     28    Cf. Mine Safety, 756 P.2d at 292.

     29     Reich  v.  Cominco Alaska, Inc., 56  P.3d  18,  25-26
(Alaska 2002); Hanson v. Kake Tribal Corp., 939 P.2d 1320,  1323,
1325 (Alaska 1997).

     30    See Hanson, 939 P.2d at 1325.

     31     The applicable statutes of limitations bar any claims
that  accrued outside the limitations periods, working  backwards
from  the  date  Carol  filed suit.   For  example,  tort  claims
accruing  more  than  two years before she filed  suit  would  be
barred  by  the  two-year statute of limitations.  Because  Carol
sued  in  May 2006 and the longest limitations period potentially
applicable to her claims is six years, all claims accruing before
May 2000 would be time-barred.

     32     Sengupta v. University of Alaska, 21 P.3d 1240,  1249
(Alaska 2001).

     33    Id. at 1249 (quoting Roberts v. Gadsden Meml Hosp., 835
F.2d 793, 800 (11th Cir. 1988)).

     34     See  id.;  see  also Berry v. Bd. of  Supervisors  of
L.S.U.,  715  F.2d 971, 981-82 (5th Cir. 1983) ([T]he  particular
context  of  individual employment situations  requires  a  fact-
specific inquiry by a trial judge which cannot be easily  reduced
to a formula.).

     35    Sengupta, 21 P.3d at 1249.

     36     Natl  R.R.  Passenger Corp. v. Morgan, 536  U.S.  101
(2002).

     37    Id. at 104-05.

     38    Id. at 113.

     39    Id.

     40    See id. at 112-13.

     41    Cf. Mahan v. Arctic Catering, Inc., 133 P.3d 655, 666-
67 (Alaska 2006) (Fabe, C.J., dissenting).

     42    Carol argues that she has been a shareholder since her
father  first granted shares to her during the 1960s.   She  does
not  argue  that  she became a shareholder through  any  separate
event occurring between 1986 and 1995.  We therefore assume  that
she  was  not  the  beneficiary of any  new  devise  or  gift  of
shareholder rights between 1986 and 1995.

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