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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Chrysler Center, Inc. v. DaimlerChrysler Motors Corporation (12/11/2009) sp-6438

Anchorage Chrysler Center, Inc. v. DaimlerChrysler Motors Corporation (12/11/2009) sp-6438

     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

ANCHORAGE CHRYSLER )
CENTER, INC., )
) Supreme Court No. S- 12702
Appellant, )
) Superior Court No.
v. ) 3AN-99-9780 CI
)
DAIMLERCHRYSLER MOTORS )
CORPORATION, ) O P I N I O N
)
Appellee. ) No. 6438 - December 11, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances: Randall G. Simpson  and  Matthew
          Singer,  Jermain  Dunnagan  &  Owens,   P.C.,
          Anchorage, for Appellant.  William D.  Falsey
          and  Jeffrey M. Feldman, Feldman  Orlansky  &
          Sanders,  Anchorage, and  Mark  T.  Clouatre,
          Wheeler  Trigg Kennedy LLC, Denver, Colorado,
          for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          I.    An automobile dealer brought an action against an
automobile  manufacturer, alleging breach of contract, fraudulent
misrepresentation, and breach of the covenant of good  faith  and
fair  dealing,  and seeking a declaratory judgment  and  damages.
The  superior court entered judgment dismissing all  claims.   On
appeal,  we  remanded to the superior court  to  make  additional
findings  and conclusions.  On remand, the superior  court  again
entered  judgment in favor of the defendant on all  claims.   The
plaintiff  automobile  dealer  now appeals  the  superior  courts
decision  on  remand.  We affirm the superior courts decision  on
the breach of contract claim, but reverse on the claim for breach
of  the covenant of good faith and fair dealing and the claim  of
fraudulent  misrepresentation.  Accordingly,  we  remand  to  the
superior  court for an award of nominal damages, and to  consider
whether  punitive  damages  are  appropriate  for  the  tort   of
fraudulent  misrepresentation.   We  also  vacate  the  award  of
attorneys fees and remand for proceedings to determine prevailing
party  status, and to reconsider attorneys fees in light  of  the
foregoing.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          This  is  an appeal of a superior court decision  on  a
matter  that  we  remanded  to the superior  court  in  Anchorage
Chrysler   Center,  Inc.  v.  DaimlerChrysler  Corp.   (Anchorage
Chrysler  Center I).1  We laid out the underlying  facts  of  the
case in Anchorage Chrysler Center I:2
               During  the  period  relevant  to   this
          dispute, plaintiff Anchorage Chrysler  Center
          (ACC) operated a dealership selling Chrysler,
          Plymouth,  and Dodge vehicles, all  of  which
          were   distributed   to  ACC   by   defendant
          DaimlerChrysler  Motors Company,  LLC  (DCMC)
          (formerly  known  as  DaimlerChrysler  Motors
          Corporation).[3]  ACC sold the  vehicles  out
          of  two  adjacent buildings on Fifth  Avenue:
          Plymouths and Chryslers were sold out of  one
          building,  and Dodges out of the other.   ACC
          operated the dealership pursuant to Sales and
          Service Agreements between ACC and DCMC.
               These sales and service agreements  gave
          DCMC the right to authorize other dealers  to
          sell  the  same cars in the same locality  as
          DCMC determines to be appropriate.  The other
          DCMC  dealer  in Anchorage was Johnson  Jeep.
          The  only  DCMC models Johnson  Jeep  carried
          were Jeep and Eagle.
               In  the  mid-1990s,  DCMC  developed   a
          merchandise strategy it called Project  2000.
          Dealers   were  encouraged  to   sell   Dodge
          vehicles  in  facilities that  were  separate
          from  the  facilities used to sell  Chrysler,
          Plymouth,  Jeep,  and Eagle vehicles.   DCMC,
          ACC,    and   Johnson   Jeep   entered   into
          discussions  about  how  to  achieve  Project
          2000s  goal  of the same dealer  selling  the
          Chrysler,  Plymouth, Jeep, and  Eagle  lines.
          DCMC  and  ACC began to negotiate what  would
          eventually become a letter agreement  between
          ACC and DCMC under which ACC would not object
               to  Johnson Jeeps selling Chryslers  and
          Plymouths.  As part of this letter agreement,
          DCMC  required ACC to rearrange its showrooms
          so that Dodges would be sold in what had been
          the   Chrysler/Plymouth  showroom,  with  the
          other  lines  (including  a  new  Jeep  line)
          moving to the former Dodge showroom.  As part
          of   the  deal  DCMC  would  also  agree   to
          authorize  ACC to open a Dodge dealership  in
          Wasilla.
               Getting  this  letter  agreement  signed
          involved   a   long  period  of  negotiation,
          extending  over several years  and  involving
          some  false starts.  One source of contention
          was  the  Wasilla  part of  the  deal,  which
          ultimately  took  the form  of  a  letter  of
          intent  that DCMC was required to provide  as
          one  of  its  obligations  under  the  letter
          agreement.   Another concern ACC had  (though
          the   degree   to  which  this  concern   was
          reflected in the parties deal is disputed  on
          this appeal) was whether DCMC would establish
          another  Dodge  dealership  in  Anchorage  to
          compete   against   ACCs   lucrative    Dodge
          franchise.    In   March   1999,    as    the
          negotiations began to enter the home stretch,
          DCMCs  in-house  lawyer David  King  sent  an
          email to ACCs lawyer, attaching a rough draft
          of  a  Wasilla letter of intent.  Under  this
          draft of the letter of intent, ACC could  get
          a   dealership  in  Wasilla   if   it   began
          constructing the dealership over time periods
          to  be determined (i.e., the draft had blanks
          for  all  the  milestones).  This  letter  of
          intent  draft  also addressed  the  issue  of
          other  Dodge stores in Alaska, by  obligating
          ACC   not  to  protest  if  DCMC  established
          another dealer selling the same lines as ACC.
          The  cover memo by DCMCs lawyer explained  to
          ACCs  lawyer that any disagreement over  this
          language  should be resolved as a  result  of
          the   understandings  already  reached.    My
          clients have not informed me of any plans for
          additional  dealerships  in  Alaska.   Later,
          after  DCMC had announced that it would  open
          another  Dodge dealership in south Anchorage,
          this statement became one basis of ACCs claim
          that DCMC had promised or represented not  to
          open another Dodge store.
               ACC   responded  by  proposing   revised
          language  for  the  letter  agreement.    The
          letter agreement proposed by ACC deleted  all
          references  to DCMCs providing  a  letter  of
          intent  and required ACC to commit to  a  new
          Wasilla  dealership within five years.1   ACC
          also  proposed new language that would commit
          the  parties  to  the  proposition  that  the
          Project  2000 agreements between  ACC,  DCMC,
          and Johnson Jeep
          
          
          1     This  commitment by ACC  was  initially
          made     subject    to    viable     economic
          circumstances, although a few weeks later ACC
          agreed to drop this particular condition.
          
          
             does   not  include  the  Dodge  franchise
          language  apparently intended to insure  that
          Johnson would not get Dodge. On May 21, 1999,
          DCMC responded with a letter from Carl Fleck,
          DCMCs  regional manager.  DCMC  said  it  was
          unnecessary to add language to the  agreement
          precluding  DCMC from giving Johnson  Jeep  a
          Dodge  dealership:  As to  awarding  a  Dodge
          Sales  and Service agreement to Johnson Jeep,
          I  can  confirm that DaimlerChrysler  has  no
          plan  to add Dodge to this dealership.   This
          would   become  another  statement  used   to
          support  ACCs  claim that DCMC had  at  least
          implicitly  promised or  represented  not  to
          start a new Dodge dealership in Anchorage.
               The  May  21 DCMC letter also seemed  to
          reject ACCs Wasilla proposal.  Fleck enclosed
          another draft of the letter of intent,  which
          was not signed by DCMC but looked ready to be
          signed  by both parties.  Under this  version
          of  the  letter of intent, DCMC  promised  to
          award ACC a Wasilla dealership for Dodge  and
          all  other  DCMC vehicles, provided  ACC  met
          certain milestones.  Under this draft of  the
          letter   of   intent,  the  first   milestone
          proposal   of   a  suitable  site   for   the
          dealership  needed to be met by June 2002  (a
          little more than three years) and ACC had  to
          finish  the dealership by July 2004 (a little
          more than five years).2  One of the issues in
          this appeal is whether this May 21 letter  of
          intent  was in form and substance the  letter
          of   intent   contemplated  by   the   letter
          agreement  that  was  concluded  a  few  days
          later.
               On  May  28,  1999, ACC and DCMC  had  a
          conference call, attended by Fleck  on  DCMCs
          side  and  by several managers on ACCs  side.
          What  happened  on the call was  disputed  at
          trial.   First,  ACC asked about  the  letter
          agreements  requirement  that  ACC  establish
          separate and complete showrooms for Dodge  on
          the  one  hand and for Chrysler/Plymouth/Jeep
          on  the  other.   According to  the  superior
          courts  findings, Fleck told ACC that because
          ACC
          
          
          2    Unlike DCMCs prior draft, this letter of
          intent  did  not  contain any  language  that
          purported to preclude ACC from opposing DCMCs
          establishment of competing dealers.
          
          already   had  two  showrooms  and   combined
          service and parts
          facilities  and  staff,  the  changes  needed
          would  be minor.  ACC also asked Fleck  about
          Dodge.  What was said on this point was hotly
          disputed  at trial.  ACC witnesses  testified
          that Fleck responded by promising not to  put
          a   new  Dodge  dealership  of  any  kind  in
          Anchorage.   But  the  superior  court  found
          (based  on Flecks testimony) that Fleck  made
          only  a brief reference to Dodge and only  in
          the context of what [Johnson Jeep] was to get
          (or  rather  to  confirm what [Johnson  Jeep]
          would not get).
               The letter agreement giving rise to this
          litigation is dated May 26, 1999.  ACC signed
          the  agreement  on May 28,  1999,  after  the
          parties  conference call; DCMC signed  it  on
          June  1,  1999.3   The letter contains  three
          bullet  points.  The first bullet  bestows  a
          Jeep  dealership on ACC, contingent  on  ACCs
          establishment   of  separate   and   complete
          facilities.  The second bullet says that  ACC
          will  not object to DCMCs giving Johnson Jeep
          the  Chrysler  and  Plymouth  franchises  (no
          mention is made of Dodge).  The third  bullet
          says  DCMC will provide ACC with its standard
          five year Letter of Intent.  Altogether,  the
          three bullets read as follows:
                  Subject  to  [ACCs]  meeting  [DCMCs]
          qualification requirements, DCMC  will  enter
          into  its  standard  Jeep Sales  and  Service
          Agreements  with ACC.  As a part  of  meeting
          DCMCs  qualification  requirements  ACC  will
          establish a complete Chrysler, Plymouth, Jeep
          (CPJ)   operation  in  ACCs   current   Dodge
          dealership facilities.  As a result, ACC will
          establish   a   separate   Dodge   dealership
          operation with a
          
          
          3     According  to the terms of  the  letter
          agreement,  it became effective  on  June  1,
          1999,  the  date  that it was  signed  by  an
          authorized   representative  of   DCMC.   The
          superior  court chose to refer to the  letter
          agreement  as  the  May 28 letter  agreement,
          based  on  the date ACC signed the agreement.
          For purposes of clarity, we will continue  to
          refer  to the agreement as the May 28  letter
          agreement.
          
          
          separate dealer code in ACCs current Chrysler
          Plymouth dealership facility.  ACC may choose
          to set up a separate legal entity under which
          the  Dodge dealership will operate or ACC may
          operate  each  of  the two dealerships  under
          ACCs  existing corporate entity with separate
          d/b/a names for the CPJ and Dodge operations.
                ACC understands and agrees that subject
          to  Johnson  Jeep meeting DCMCs qualification
          requirements,  DCMC  will  enter   into   its
          standard  Chrysler  and  Plymouth  Sales  and
          Service  Agreements  with  Johnson  Jeep   at
          Johnson  Jeeps  current Jeep  location.   ACC
          agrees   to   not  protest  or  oppose   this
          establishment in any administrative, court or
          other proceeding.
                 DCMC will provide You and ACC with its
          standard  five  year Letter of Intent  giving
          You  and  ACC  the right to  qualify  and  be
          approved  as a Dodge, Chrysler, Plymouth  and
          Jeep  dealership in the Wasilla, Alaska Sales
          Locality.   Such a Letter of Intent  will  be
          conditioned  upon You and ACC  meeting  DCMCs
          standard dealership qualifications applicable
          to   the   Wasilla,  Alaska  Sales  Locality,
          including   the   requirement   of   adequate
          facilities.   The Letter of  Intent  will  be
          drafted to become effective as of the date of
          the standard Jeep Sales and Service Agreement
          referenced above.
               Soon    after   signing,   the   parties
          disagreed about what changes ACC had to  make
          to  its  showrooms to make each complete  and
          separate  under the agreement.   DCMC  wanted
          separate  managers, separate  service  areas,
          separate   parts  counters,  separate   sales
          staff,  separate  financial  statements,  and
          separate  dealer codes.  ACC  understood  the
          changeover  merely to involve using  separate
          dealer  codes,  swapping  signs,  and  making
          other minor modifications.
               In  September 1999, without  making  any
          attempt   to  create  separate  and  complete
          facilities, ACC filed its complaint  in  this
          action.   DCMC  had never sent any  Jeeps  to
          ACC,  and  never  (after  May  21)  sent  ACC
          another   letter  of  intent  for  a  Wasilla
          dealership.   The  complaint  alleged,  among
          other  things:  (1) that, by insisting  on  a
          significant  transformation  of  ACC   as   a
          precondition   to   receiving   Jeeps,   DCMC
          breached  the  May 28 agreement and  violated
          the  duty of good faith and fair dealing; (2)
          that DCMC misrepresented its intention not to
          establish  a  dealer in south Anchorage;  (3)
          that  DCMC breached its promise to  give  ACC
          five  years  to  establish  a  dealership  in
          Wasilla; and (4) that a new dealership  would
          violate  the  agreement and the  covenant  of
          good  faith and fair dealing.  The  complaint
          sought declaratory relief, injunctive relief,
          and  compensatory and punitive damages.  Less
          than  two  months  after  the  complaint  was
          filed, DCMC formally approved a plan to  open
          a   new   Dodge  store  in  south  Anchorage,
          although not at Johnson Jeep.
               The  matter eventually came to  a  bench
          trial before Superior Court Judge William  F.
          Morse.   He  issued  findings  of  facts  and
          conclusions  of  law  rejecting  ACCs  claims
          (though  one issue on this appeal is  whether
          the   opinion   actually  addresses   certain
          claims), and on this basis entered a judgment
          dismissing  all  claims  against  DCMC.   The
          superior courts rulings will be discussed  in
          detail  below, but can be summarized briefly.
          Rejecting  ACCs claim that DCMC breached  the
          contract  by  failing to provide  Jeeps,  the
          court held that the contract required ACC  to
          make at least some changes to its facilities,
          and  that  without attempting  to  make  such
          changes ACC could not complain of any  breach
          by  DCMC.   On  the issue of  the  new  Dodge
          dealership  in  south  Anchorage,  the  court
          rejected   ACCs  contractual   claims   after
          finding  that DCMC never promised to  refrain
          from establishing an entirely new dealership.
          The  court also rejected ACCs claim that DCMC
          misrepresented its intentions to open  a  new
          Dodge  dealership, finding that ACC  was  not
          justified in relying on the hedged statements
          made  by DCMC, that ACC did not actually rely
          on  these statements, and that the statements
          were  technically true.  As  to  the  Wasilla
          letter of intent, the court found that  DCMC,
          having sent a letter of intent on May  21  (a
          few  days  before  the letter  agreement  was
          signed),  was  not required to  send  another
          letter  of intent under the letter agreement,
          at  least  when ACC had never requested  that
          DCMC send such a new letter of intent.
After  determining  that  DCMC  was  the  prevailing  party,  the
superior  court awarded DCMC twenty percent of the $1,783,513  in
attorneys  fees  that  DCMC  incurred,  for  a  total  award   of
$356,702.60.
     B.   Proceedings
          In  Anchorage  Chrysler  Center  I,  ACC  appealed  the
superior court decision on four grounds.  First, ACC argued  that
the  superior court erred by not determining what alterations  to
ACCs   facilities  were  required  by  the  May  28   letter   as
preconditions for DCMC shipping Jeeps.4  Second, ACC argued  that
the  superior court erred in finding that the May 28  letter  did
not  include a promise by DCMC to not open a new Dodge  franchise
in  Anchorage and in finding that additional statements  by  DCMC
regarding   a  new  Dodge  dealership  in  Anchorage   were   not
misrepresentations.5  Third, ACC argued that the  superior  court
erred  in finding that the letter of intent contemplated  in  the
May  28  letter  was the May 21 letter of intent.6   Fourth,  ACC
argued  that the superior court erred by failing to discuss  ACCs
claim for breach of the covenant of good faith and fair dealing.7
          We  considered  the  four claims and  remanded  to  the
superior  court to make specific additional findings.  First,  we
instructed  the superior court to determine whether the  criteria
for  issuing  a declaratory judgment are satisfied  and,  if  so,
decide   whether  DCMCs  demands  concerning  creating   separate
dealership  operations  were  in  accordance  with  the  May   28
agreement.8   Second,  we  instructed  the  superior   court   to
determine  whether DCMCs alleged oral statements .  .  .  were  a
fraud inducing ACC to enter into the May 28 letter agreement with
particular  attention to whether statements that were technically
true     could     nevertheless    be    considered    fraudulent
misrepresentation, and to make findings under Section 529 of  the
Restatement  (Second)  of  Torts.9   Third,  we  instructed   the
superior court to make additional findings regarding the  parties
understandings of the letter of intent contemplated in the May 28
agreement, including whether ACC implicitly waived its  right  to
receive  the  letter  of  intent.10   Fourth,  and  finally,   we
instructed  the  superior court to address the claim  that  DCMCs
conduct violated the covenant of good faith and fair dealing.11
          On  remand, the trial court addressed each of the  four
issues.   First, the superior court found that the  criteria  for
issuing a declaratory judgment were satisfied because the parties
discussions   about   basic  principles  and  requirements   were
sufficiently detailed to allow the court to ascertain the parties
respective  rights  and duties.  The superior court  additionally
concluded that DCMC did not breach the agreement because ACC  had
not  taken  the  minimum steps required to satisfy the  condition
precedent and trigger DCMCs obligation to provide ACC with Jeeps.
Second,  on  the  issue of fraud, the superior court  found  that
statements  by  DCMCs representative Fleck,  by  letter  and  via
conference call, satisfied four of the five elements required  to
          prove a claim of fraudulent misrepresentation.  But, because it
found  that  ACC  did  not  show any  loss,  the  superior  court
concluded  that  ACC  did  not satisfy  the  fifth  element  and,
accordingly,  that  it  had not proved  its  claim.   Third,  the
superior court found that the standard five year letter of intent
referenced  in  the May 28 letter was the letter of  intent  that
Fleck  had sent to ACC on May 21.  The superior court also  found
that  ACC waived its right to negotiate revisions to the  May  21
letter  of  intent,  and  that this waiver,  combined  with  ACCs
failure to sign the May 21 letter of intent, was a breach of  the
May  28 agreement.  Fourth, the superior court briefly considered
each  of the three bases offered by ACC as support for its claim,
and  concluded  that DCMC had not violated the covenant  of  good
faith and fair dealing.
          In  the  end, the superior court entered final judgment
against ACC and in favor of DCMC on all claims and dismissed  all
of  ACCs claims with prejudice.  ACC appeals the superior  courts
decision on remand.
III. STANDARD OF REVIEW
          Issues  of  contract interpretation  generally  present
questions  of  law which we review de novo.12  When the  superior
court  relies  on  extrinsic testimonial evidence  to  provide  a
factual basis for its interpretation of a contract, we apply  the
clearly  erroneous  standard in reviewing the  courts  underlying
findings  of fact.13  We review findings of fact by the  superior
court  on issues of misrepresentation under the clearly erroneous
standard.14

IV.  DISCUSSION
     A.   The Superior Court Did Not Err in Declining To Find that
          ACCs Non-Performance Was Excused by DCMCs Anticipatory Breach.
          ACC  argues  that although the superior court  complied
with our instructions on remand and issued a declaratory judgment
that  identified the facility changes that were required  by  the
May  28  agreement, the superior court erred by not  additionally
finding  that DCMCs demands for additional facility changes  were
an anticipatory breach that excused ACCs performance.  ACC claims
that the superior court erred in finding that ACC breached a pre-
condition  of  the  May 28 agreement by not proceeding  with  its
version of the required facility changes.  ACC also asserts  that
the  superior court erred in failing to recognize that ACCs  duty
to perform the new facility changes should have been excused as a
matter of law by the unilateral and unreasonable demands of DCMC.
According to ACC, the superior court should have held that  DCMCs
unreasonable  and unilateral demands constitute a repudiation  or
anticipatory breach of contract and that such anticipatory breach
gives rise to a claim for damages for total breach and discharged
ACCs remaining duties to render performance.
          DCMC responds that ACCs anticipatory breach argument is
unavailing  because  (1) it was raised  for  the  first  time  on
appeal, (2) the superior court found that DCMC never communicated
a  repudiation  of  the  contract, (3)  any  anticipatory  breach
alleged by ACC could not have justified ACCs non-performance, (4)
DCMCs actions nullified any earlier repudiation, and (5) any duty
          by DCMC to pay damages for an anticipatory breach was discharged
when  ACC breached and indicated that it would never perform  its
obligations.
          1.   The  anticipatory breach issue is properly  before
               this court.
          DCMC   argues   that  we  should  not   consider   ACCs
anticipatory breach arguments because ACC cannot properly advance
a theory of anticipatory breach for the first time in the opening
brief of a second appeal, eight years after filing its complaint.
ACC responds that, although it has honed its arguments over eight
years  of litigation, there is nothing new about the anticipatory
breach argument.
          We  have held that, in general, a party may not present
new  issues  or  advance new theories to secure a reversal  of  a
lower  court  decision.15   We have adopted  a  liberal  approach
towards  determining whether an issue or theory  of  a  case  was
raised  in  a lower court proceeding, however, and will  consider
new  arguments on appeal if they are closely related to the trial
court arguments and could have been gleaned from [the] pleadings.16
Key  words  or phrases do not need to appear in the pleadings  in
order  for  us to find that an argument was raised prior  to  the
appeal.17
          Here,   although  ACC  did  not  use  the  exact  terms
anticipatory  breach  or repudiation prior to  this  appeal,  ACC
established  the basis for its present argument by  alleging   in
its  complaint  and  in its first appeal of the  superior  courts
finding   that  it  was DCMC that first breached  the  agreement.
Additionally, the factual findings made by the superior court  in
the  original  hearing and on remand, particularly  the  findings
that  led to the declaratory judgment on the terms of the May  28
agreement, provide an adequate factual basis for us to  determine
whether  DCMCs  additional  demands  constitute  an  anticipatory
breach.  Because ACC has consistently argued, beginning with  its
complaint, that DCMC was the first to breach the May 28 agreement
and  that  a declaratory judgment is necessary to establish  this
breach,  and  because the superior court has issued a declaratory
judgment and made other findings regarding the agreement and  the
parties  subsequent  actions, we conclude that  the  anticipatory
breach argument is properly before this court.
          2.   DCMCs  additional  demands did not  constitute  an
               anticipatory breach of the May 28 agreement.
          We   instructed  the  superior  court,  on  remand,  to
determine whether the criteria for issuing a declaratory judgment
are satisfied and, if so, decide whether DCMCs demands concerning
creating  separate dealership operations were in accordance  with
the  May 28 agreement.18  On remand, the superior court concluded
that  the  criteria  for  issuing  a  declaratory  judgment  were
satisfied  because [i]t will be useful for the  parties  to  have
this  dispute resolved so that they may understand how they  came
to such a misunderstanding and avoid similar controversy in their
future  dealings.   The  court then found  that,  although  [t]he
parties never finalized a detailed description of what ACC needed
to  do  to its facilities and operations, the parties discussions
about  basic principles and what would be required were  detailed
          enough to permit the Court to declare what minimum steps ACC
needed to take to meet the condition precedent that would trigger
DCMCs  obligation to deliver Jeeps to ACC.  These steps  involved
changing  signage, utilizing separate dealer codes, and upgrading
physical  facilities and changing staffing to allow each facility
to provide service work and parts sales.  The superior court also
explicitly  laid  out the actions that ACC was  not  required  to
take,  finding  that  ACC would not have to increase  the  square
footage of either of its buildings . . . would not have to have a
duplicate  office staff for the smaller building . .  .  .  [and]
would  not  have  to have a general manager, a sales  manager,  a
service manager, or parts manager for the smaller building.   The
superior  court ultimately concluded that if ACC had  constructed
the  changes  to  the facilities and modified  its  operation  as
identified  above,  then ACC would have .  .  .  triggered  DCMCs
obligation to provide ACC with Jeeps, even if DCMC was not  fully
satisfied   with   the   modifications.    The   superior   court
additionally found that both sides became more demanding after 28
May.
          ACC  argues  that  although  the  superior  court  made
correct  factual findings, its conclusions of law were in  error.
ACC  claims  that  its  duty  to make the  modifications  to  its
facilities was excused as a matter of law by DCMCs unilateral and
unreasonable  demands.  This argument is based  on  the  premises
that  DCMCs  unreasonable  and unilateral  demands  constitute  a
repudiation  or anticipatory breach of contract,  and  that  such
anticipatory breach gives rise to a claim for damages  for  total
breach   and   discharged  ACCs  remaining   duties   to   render
performance.
          DCMC responds to the first premise by arguing that  the
superior  court correctly concluded that DCMC did not announce  a
definite  and  unconditional  intent  to  repudiate  the  May  28
agreement.   DCMC responds to the second premise by arguing  that
any  anticipatory breach on its part could not have excused  ACCs
non-performance.    DCMC  also  argues  that   any   anticipatory
repudiation    was   nullified   by   the   parties    subsequent
communications,  and cannot provide the basis  for  a  claim  for
damages  because the superior court correctly concluded that  ACC
would never have performed.
          We have looked to the Restatement (Second) of Contracts
to   provide   guidance  on  the  requirements  for  anticipatory
repudiation.19  According to the Restatement,
          [a] repudiation is
          (a) a statement by the obligor to the obligee
          indicating  that the obligor  will  commit  a
          breach  that would of itself give the obligee
          a  claim for damages for total breach . . . ,
          or
          (b) a voluntary affirmative act which renders
          the  obligor unable or apparently  unable  to
          perform without such a breach.[20]
When the alleged repudiation takes the form of additional demands
or requirements from one party, we have stated that
          [t]o be a repudiation, a partys language must
          be  sufficiently  positive to  be  reasonably
          interpreted to mean that the party  will  not
          or  cannot perform.  A repudiation could also
          involve  language that clearly  manifests  an
          intention not to perform except on conditions
          which  go  beyond the contract[.]  Similarly,
          to  be  an  anticipatory breach  based  on  a
          request   for   additional  conditions,   the
          request  must  be  coupled with  an  absolute
          refusal  to  perform unless  the  request  is
          granted.[21]
In  order  to determine that the superior court erred in  finding
that  DCMC  did not repudiate the agreement, therefore,  we  must
find  that  DCMC  demonstrated a refusal to  perform  unless  the
additional requirements it communicated after the May  28  letter
agreement were met.
          To  support  its assertion that DCMCs inconsistent  and
onerous  demands in the summer of 1999 qualify as an anticipatory
breach  or  renunciation of the contract,  ACC points to  several
instances  where  DCMC  allegedly made  additional,  unreasonable
demands.  First, ACC points to comments made at a meeting in July
1999,  several  weeks  after  the  parties  signed  the  May   28
agreement,  when  DCMC representatives traveled to  Anchorage  to
discuss  the  facility requirements.  ACC  claims  that  at  that
meeting DCMC insisted that it would not give the Jeep line to ACC
unless  ACC  agreed  to create two exclusive dealerships  at  its
current  location.  The trial testimony that ACC cites as support
for  this  assertion,  however, includes the  testimony  of  Carl
Fleck,  DCMCs  regional  representative,  who  acknowledged  that
exclusivity was discussed at the meeting but further claimed that
exclusivity  was offered only as an opening negotiating  position
and  that  DCMCs representatives also indicated a willingness  to
settle  for  less than that.  Fleck characterized the  discussion
as:  We request that you have this but this is what I will settle
for.   Fleck  described the course of the discussion  by  stating
[w]e  started off talking about what the actual requirements were
.  . . .  After that we talked about okay, what can we do to make
this work and what . . . would you . . . kind of settle for.
          ACC  also  points to several DCMC documents as  support
for  the  assertion  that  DCMC  demanded  exclusive  facilities.
Although these documents do reference DCMCs continued desire  for
exclusivity   and  ACCs  resistance,  none  of  these   documents
contradict Flecks testimony that DCMC would ultimately be willing
to  be  flexible  on  the  issue of exclusivity.   The  documents
referenced  by ACC include: a facility guide that DCMC  faxed  to
ACC on August 3, 1999 that lists the square footage for the Dodge
exclusive   and  CPJ  exclusive  facilities;  an  internal   DCMC
memorandum  that  preceded  the  July  1999  meeting   and   that
characterized  the  meeting  as an attempt  to  make  a  trip  to
Anchorage to iron out the details that [ACC] is having difficulty
with; a memorandum that  characterizes ACCs position as objecting
to  the exclusivity requirements; and a memorandum that describes
a  letter  sent to ACC asking for its firm commitment to  provide
exclusive  facilities  by  September 17,  1999.   None  of  these
          internal documents may reasonably be interpreted to be a
statement  that DCMC would not perform under the contract  unless
ACC agreed to exclusivity.
          Therefore, the record does not contain support for ACCs
assertion  that  DCMC  repudiated  the  agreement  when  it  made
subsequent requests for exclusive facilities.  DCMC did not  make
any  statements that, reasonably interpreted, said it  would  not
perform unless ACC created exclusive facilities, and the evidence
contains testimony that suggests that the request for exclusivity
was  an opening bargaining position and that DCMC made clear that
it was willing to negotiate.  Because the record does not contain
any  evidence that DCMC demonstrated a refusal to perform  except
on  conditions which go beyond the contract,22 it was  not  clear
error  for  the  superior court to conclude  that  DCMC  did  not
repudiate the agreement.
     B.   It  Was  Error To Conclude that ACC Failed To Establish
          the  Loss  Element  of Its Fraudulent Misrepresentation
          Claim.
          We  determined  in the first appeal that  the  superior
court  erred  as a matter of law in the original hearing  by  not
making  findings  of  fact appropriate  to  the  legal  test  for
fraudulent   misrepresentation  articulated  in  the  Restatement
(Second)  of Torts.23  Specifically, we were concerned  that  the
superior court did not appear to appreciate that a statement  can
be    literally   true   and   yet   still   be   an   actionable
misrepresentation.24  Accordingly, we remanded  to  the  superior
court  for  further  consideration of  whether  DCMCs  statements
regarding  its  intention not to place new Dodge  dealerships  in
Anchorage  were  a fraud inducing ACC to enter into  the  May  28
letter  agreement.25  There were two statements by DCMC that  the
superior court considered on remand: (1) [a] statement in the May
21, 1999 letter to ACC by DCMC manager Carl Fleck: As to awarding
a  Dodge  Sales  and  Service agreement to Johnson  Jeep,  I  can
confirm  that  DaimlerChrysler has no plan to add  Dodge  to  the
[Johnson  Jeep] dealership ; and (2) [a] statement to  ACC  on  a
conference call by the same DCMC manager, the day ACC signed  the
agreement, allegedly to the effect that DCMC would not  establish
a Dodge dealership in south Anchorage.26
          We   have   identified  the  elements  of   intentional
misrepresentation  as  (1)  a  misrepresentation   of   fact   or
intention, (2) made fraudulently (i.e., with scienter),  (3)  for
the  purpose  of  inducing another to act in reliance,  (4)  with
justifiable reliance by the recipient, (5) causing loss.27
          On remand, the superior court found that the first four
elements of fraudulent misrepresentation were met, and that  [i]f
in  March  or  May  [DCMC] had told ACC of the imminence  of  the
second  Dodge  dealer, [ACC] would not have  signed  the  28  May
letter.  The superior court also found, however, that ACC did not
suffer any loss as a result of DCMCs fraudulent misrepresentation
because [t]he only affirmative steps that ACC took were to change
the  logos  on  the floors of the two showrooms  and  to  consult
architects.   The  superior  court  supported  this  finding   by
pointing to the facts that there was no testimony about the  cost
of  the  switch and no reason to believe that ACC did not receive
          some benefit from the appearance of the new logos and that
[t]here  was  no  evidence  that the  architects  were  hired  or
performed  any  work.  Accordingly, because  it  found  that  ACC
failed  to  prove  the  necessary fifth  element  for  fraudulent
misrepresentation, the superior court found for DCMC.
          ACC   now  argues  that  although  the  superior  court
correctly  found  on remand that DCMC made statements  that  were
fraudulent misrepresentations and that ACC justifiably relied  on
these  misrepresentations, the superior court  erred  by  finding
that  ACC  did  not  suffer any loss and by concluding  that  ACC
therefore    failed   to   prove   its   claim   for   fraudulent
misrepresentation.  ACC contends that the superior court erred by
considering  only reliance damages and not consequential  damages
in   determining  whether  ACC  suffered  any  losses.   In   the
alternative, ACC argues that it did suffer reliance  damages  and
that,  as  a result, the superior court erred by not awarding  at
least nominal damages.
          DCMC   responds   that  the  superior  court   properly
considered  all categories of loss that ACC could  have  suffered
and correctly found that ACC did not suffer any loss.
          We  conclude that the superior court properly  rejected
ACCs  claim  for consequential damages, but should  have  awarded
nominal  damages  for losses ACC incurred in  reliance  on  DCMCs
misrepresentations.
          1.   The  superior court did not clearly err in finding
               that  ACC  suffered no consequential  losses  from
               DCMCs fraudulent misrepresentations.
          ACC   argues  that  the  superior  court  should   have
considered those other consequential damages which ACC would  not
have  suffered  but  for  DCMCs fraud.  (Emphasis  in  original.)
Specifically,  ACC argues that [b]ut for DCMCs fraud,  ACC  would
still be the only Chrysler dealer in Anchorage and that therefore
the  Project  2000 deal cost ACC a significant loss  of  Chrysler
sales. (Emphasis in original.)
          In general, when reviewing the assessment of damages in
tort  cases, we apply the rule that the injured party is entitled
to  be placed as nearly as possible in the position he would have
occupied  had  it  not  been for the tortious  conduct.28   These
damages can include those costs proximately resulting from  or in
consequence of  the defendants conduct.29  A plaintiff in a  tort
action  for fraudulent misrepresentation, therefore, may  recover
damages incurred for losses suffered both in reliance on, and  in
consequence of, the defendants tortious action.  ACC argues  that
the   superior  court  violated  this  principle  by  basing  its
conclusions only on the losses ACC incurred in reliance on  DCMCs
fraudulent  statements, and not on additional losses suffered  in
consequence of DCMCs statements.  DCMC responds that the superior
court did in fact consider ACCs consequential losses, such as the
potential  loss  of  sales caused by increased  competition,  but
found that ACC would have experienced those losses regardless  of
whether  DCMC had made the fraudulent statements and  whether  or
not ACC had entered into the agreement.
          It  appears  that the superior court did  consider  the
losses  that ACC alleges it experienced as a result of  increased
          competition from the expansion of Johnson Jeep via Project 2000
to include Chrysler sales, as well as the addition of a new Dodge
dealership  to the Anchorage region.30  The superior court  found
that  any  lost  sales  that ACC suffered as  a  result  of  this
increased  competition would have occurred if Fleck had  revealed
DCMCs intention to open a second Dodge [dealership] before 28 May
and  [ACC] had broken off the Project 2000 talks because [Johnson
Jeep]  would have gotten its expanded lines and DCMC  would  have
opened  the  second Dodge dealership.  Thus, the  superior  court
implied,  ACCs  agreement to participate in  Project  2000  as  a
result  of  DCMCs fraudulent misrepresentations did not  increase
the chances that ACC would experience a loss of sales.
          ACC  disputes  this finding by arguing,  based  on  the
testimony of DCMCs regional manager Carl Fleck, that there  would
not  have  been a Project 2000 in Anchorage without ACCs consent.
The  corollary of this argument is that DCMC could not have added
additional  product lines to Johnson Jeep or added  a  new  Dodge
dealership without ACCs agreement to participate in Project 2000.
We disagree.
          ACCs sales and service agreements with DCMC for sale of
the  Chrysler,  Plymouth, and Dodge product lines all  contain  a
provision that specifies that ACCs right to the product lines  is
non-exclusive  and  that ACCs designated sales  locality  may  be
shared  with  other  [DCMC] dealers as [DCMC]  determines  to  be
appropriate.  Therefore, although DCMC appears to have  initially
sought  the  approval  of all local dealers  before  implementing
Project  2000  in  Anchorage, the franchise  agreements  did  not
require it to do so.
          We  addressed  the  issue  of ACCs  sales  and  service
agreements  with  DCMC and their impact on ACCs misrepresentation
claims in our opinion in the original appeal.31  At that time  we
considered DCMCs argument that the existence of these  sales  and
service  agreements  made any oral misrepresentations  about  new
dealerships . . . irrelevant, but rejected this argument  because
an  oral statement that would be unenforceable as a promise under
the terms of Contract A may yet be a tortious misstatement if  it
induces the recipient of the statement to enter into Contract B.32
We  now conclude that the facts preclude ACC from establishing  a
claim  for consequential damages under that line of reasoning  as
well.
          None of the agreements that DCMC entered into with  the
Anchorage  dealers  in  the course of implementing  Project  2000
created a legal right on the part of any one dealer to object  to
an  individual  agreement  between DCMC  and  any  of  the  other
dealers.   The record shows that after ACC frustrated an  initial
attempt  by  DCMC to get the Anchorage dealers to participate  in
Project  2000 in 1997, DCMC revised its internal policy  so  that
Johnson  Jeeps  participation  in  Project  2000  would  not   be
dependent on ACCs consent.  Johnson Jeeps eventual agreement with
DCMC in January 1999 did not, in fact, require ACCs consent,  and
Johnson  Jeep  and  DCMC continued to honor that  agreement  even
after DCMCs separate agreement with ACC unraveled.
          Therefore, not only did the sales and service agreement
between  ACC and DCMC preserve DCMCs right to open new franchises
          and authorize the sale of additional product lines within the
Anchorage  region, but the eventual Project 2000 letter agreement
between  DCMC  and  Johnson Jeep did not  contain  any  provision
making   that  deal  contingent  on  ACCs  consent  or  approval.
Accordingly,  ACC  never  had any legal right  to  protest  DCMCs
agreement to add a Chrysler product line to Johnson Jeep.   As  a
result,  any  loss  of Chrysler sales that ACC  suffered  due  to
competition from Johnson Jeep would have occurred whether or  not
ACC had entered into a Project 2000 agreement with DCMC.  Because
ACC  never  had  a legal right to object to the addition  of  the
Chrysler  product  line to Johnson Jeep  whether  as  part  of  a
Project  2000  agreement or not  ACC cannot now  claim  that  any
sales  loss it suffered as a result of this increased competition
was  a consequence of DCMCs fraud or ACCs resulting participation
in  Project 2000.  The superior court was correct, therefore,  in
finding that any losses ACC incurred from competition with  other
dealerships in the region would have occurred whether or not  ACC
had entered into the Project 2000 agreement.
          2.   The  superior  court  erred in  failing  to  award
               nominal  damages  after  ACC  showed  it  incurred
               losses    in    reliance   on   DCMCs   fraudulent
               misrepresentations.
          ACC argues, in the alternative, that the superior court
should  have  awarded  it at least nominal  damages  because  ACC
established that it did suffer some losses in reliance  on  DCMCs
fraudulent  misrepresentations.  ACC contends  that  it  suffered
losses in the form of both the cost of switching the floor  logos
and  the harm from a weakening of ACCs bargaining position.  DCMC
responds  that  ACCs  argument for nominal damages  is  meritless
because  it  is raised for the first time on appeal, because  the
superior  court  did not commit clear error in finding  that  ACC
failed  to  prove  that it was harmed, and because  the  superior
court  was  not  obligated to award nominal damages.   DCMC  also
argues  that  ACC is not entitled to remand because the  superior
court  did not abuse its discretion in determining that DCMC  was
the  prevailing  party  and  ACC was  not  entitled  to  punitive
damages.
          As  discussed in Part IV.A.1. above, we have adopted  a
liberal  approach towards determining whether an issue or  theory
of  a  case was raised in a lower court proceeding; and  we  will
consider  new arguments on appeal if they are closely related  to
the  trial court arguments and could have been gleaned from [the]
pleadings.33   ACCs  fifth  claim for  relief  in  its  complaint
includes the assertion that [ACC] reasonably relied upon  [DCMCs]
misrepresentations and omissions in agreeing to waive its  rights
to protest the establishment of a new motor vehicle dealership in
[ACCs]  relevant market area, and the prayer for relief  included
requests for an award of damages in an amount to be determined at
the time of trial, but in excess of $75,000.00 and such other and
further  relief  as  the  court may deem  just  and  appropriate.
Because  ACC  raised  the  issue of DCMCs misrepresentations  and
requested  unspecified  damages  and  additional  relief  in  its
complaint,  ACCs current request for nominal damages is  properly
before this court.
          Whether nominal damages are available to a plaintiff in
a  case  of fraudulent misrepresentation is a question  of  first
impression  in  Alaska.  We have recognized that nominal  damages
are  typically  awarded in two situations: (1) as a  trifling  or
token  allowance for a technical invasion of a plaintiffs  rights
or  a  breach of a legal duty when no actual injury is shown,  or
(2)  as   the very different allowance made when actual  loss  or
injury is shown, but plaintiff has failed to prove the extent and
amount  of  damages.34  In holding that nominal  damages  are  an
available  remedy for false arrest under the first  category,  we
have  recognized that as a matter of law, a plaintiff in a  false
arrest  case need offer no proof of actual damages because injury
in the sense of monetary loss is not an element of the tort.35  In
contrast, as discussed above, an actual loss is one of  the  five
required   elements   for   proving   a   claim   of   fraudulent
misrepresentation.36   Because  a  plaintiff  in   a   fraudulent
misrepresentation case must show proof of actual loss, the  first
category of nominal damages does not apply in this case.
          Under  the second category of nominal damages  that  we
have  identified, ACC would have a claim to nominal damages  only
if  it  proved  that it did suffer a loss but  was  not  able  to
establish  the extent or amount of damages.  ACC bases its  claim
for  nominal  damages on the costs it incurred in  switching  the
floor  logos and on the loss of bargaining power that it suffered
by  relying  on  DCMCs misrepresentations.   In  addressing  ACCs
claims  that  it suffered a loss from the costs of switching  the
logos, the superior court found that there was no testimony about
the  cost of the switch and no reason to believe that ACC did not
receive  some  benefit  from the appearance  of  the  new  logos.
However, the lack of testimony on the cost of the switch does not
by itself preclude a claim for nominal damages, since an award of
nominal  damages is appropriate where a party incurs a  pecuniary
loss  of  undetermined amount.  The superior  court  additionally
found  that the newly painted logos may have conferred a  benefit
on ACC sufficient to make up for any loss suffered.
          That ACC might have benefitted from its expenditure  is
possible,  but  was not shown.  Furthermore, to  assume  that  an
offsetting  benefit  negates the harm ignores opportunity  costs:
ACC  might have had another way to expend those funds that  would
have benefitted it more.
          While  the  changing of the logos  was  an  actual,  if
unquantified  loss,  we  do not agree with  ACCs  claim  that  it
suffered a loss from harm to its bargaining position.  As is  the
case with the alleged loss from switching the logos, ACC does not
point to evidence to establish the extent of the loss it suffered
as  a  result of diminished bargaining power.  In addition, there
is  no precedent in Alaska for considering a change in bargaining
position  to constitute in itself a loss in a fraud action.   ACC
relies  on  a case from the Illinois Court of Appeals  where  the
court  found that the distortion of the bargaining process  [from
the  fraud]  is  itself  sufficient to establish  damage.37   The
Illinois  decision, however, was based on an unusual  aspect  not
present in the case at hand: [the defendant] allegedly engaged in
a fraudulent scheme to overcome [the plaintiffs] resistance, even
          though an honest transaction . . . allegedly might have been more
advantageous to [the defendant].38  The Illinois court  concluded
that  it  was appropriate to broaden the inquiry into damages  to
encompass harm to the plaintiffs bargaining position because  the
unusual  circumstances  of the case made it  impossible  for  the
plaintiff  to argue the benefit of the bargain as the measure  of
damages.39
          In the absence of the unusual circumstances at issue in
the  Illinois  case,  ACCs reliance on the Illinois  decision  is
misplaced.  It would not be appropriate to generally broaden  the
fifth  element  of  the  fraudulent  misrepresentation  tort   by
treating  changed bargaining position as, in and  of  itself,  an
actual loss.  In virtually any fraudulent misrepresentation  case
involving  negotiations or a contract, the reliance element  will
involve  the use of misrepresentation to influence what  a  party
consents  to  do  or  not do.  Equating a compromised  bargaining
position  with actual loss would thus cause the loss and reliance
elements  of  the tort to collapse into a single element.   Every
time a party could show that it acted in reliance on a fraudulent
misrepresentation  (the fourth element of  the  tort),  it  could
automatically assert the misrepresentation harmed its  bargaining
power  and  caused  a  loss  (the fifth  element).  The  loss  in
fraudulent  misrepresentation must be a pecuniary  loss  that  is
caused by the plaintiffs reliance on the misrepresentation.
          In  addition, ACC never enjoyed a favorable  bargaining
position  in  relation to DCMC because, as discussed  above,  ACC
never  had  a legal right to oppose the expansion or addition  of
competing  dealerships in the Anchorage area.40   Therefore,  any
harm  to  ACCs  bargaining position would have been  unlikely  to
change the outcome of any negotiations with DCMC.
          ACC further argues that the superior court erred by not
awarding  nominal  damages  so  that  ACC  could  vindicate   the
injustice of its franchisor committing fraud in the course of its
day-to-day  business,  and  so  that  ACC  could  be  deemed  the
prevailing party for purposes of Civil Rule 82 fees.  ACC  frames
this  as a policy question, asking when a plaintiff proves a case
of  fraud and shows that it has acted in reliance on that  fraud,
should the trial court at least award nominal damages and declare
the  fraud  victim the prevailing party?  Were we  to  adopt  the
proposed  policy, the effect would be to sever the fifth  element
currently    required   to   prove   a   claim   of    fraudulent
misrepresentation: loss.41  ACC does not offer more than  cursory
support  for  this extraordinary proposition, however.   Although
ACC    is    correct    that    fraud,    including    fraudulent
misrepresentation, should be discouraged, ACC has not established
that  the  existing test for fraudulent misrepresentation  is  so
flawed that it should be abandoned.
          We conclude that it was error to fail to award at least
nominal  damages for the expenses ACC incurred in  switching  its
floor  logos.  Although the amount of this loss was undetermined,
and  likely small, nominal damages should have been awarded.   On
remand,  the trial court will need to also consider how  such  an
award  affects  prevailing party status and attorneys  fees,  and
will   also  need  to  consider  whether  punitive  damages   are
          appropriate.  This will be discussed further in Part IV.E below.
     C.   DCMC  Breached  the  Covenant of Good  Faith  and  Fair
          Dealing When It Made Fraudulent Misrepresentations.
          In  the original appeal in this case we determined that
the superior court failed to address ACCs three claims for breach
of  the  covenant of good faith and fair dealing.42  We described
those claims as: (1) DCMCs failure to notify ACC that it intended
to  establish a new south Anchorage dealership, (2)  its  alleged
revocation of the Wasilla letter of intent, and (3) its allegedly
unreasonable   demands   for  changes   in   ACCs   facilities.43
Accordingly, we remanded to the superior court to rule  on  these
claims  and  to  make  the factual findings incident  to  such  a
ruling.44
          On  remand, the superior court concluded that DCMC  did
not  violate the covenant of good faith and fair dealing  in  the
revocation of ACCs ability to open a dealership in Wasilla or its
ability  to  receive  Jeeps.  DCMC acted  in  bad  faith  in  its
nondisclosure  of the coming of the second Dodge dealership,  but
that misconduct did not cause ACC any damage.  The superior court
also found that these claims add little to ACCs other claims, and
that  ACCs scant treatment of [these claims] at the trial was  an
implicit   recognition  that  they  are  not   much   more   than
restatements of ACCs main claims.
          We have held that [t]he covenant of good faith and fair
dealing  is implied in every contract in order to effectuate  the
reasonable  expectations of the parties to the agreement.45   The
covenant  includes  subjective and objective  elements,  both  of
which must be satisfied.46  The subjective element prohibits  one
party  from  acting to deprive the other of the  benefit  of  the
contract.47  The objective element requires each party to act in a
manner that a reasonable person would regard as fair. 48
          In  its  current appeal, ACC primarily  relies  on  the
argument  that DCMC breached the implied covenant of  good  faith
and  fair  dealing  when it accelerated  its  plans  to  open  an
additional Dodge dealership in south Anchorage.  ACC first argues
that the superior court failed to make any findings on remand  on
the  issue  of whether DCMC breached the covenant by opening  the
second  Dodge  franchise.  In particular, ACC contends  that  the
superior court did not consider evidence that there was no market
justification  for a second Dodge [dealership] in  Anchorage  and
that in so doing DCMC ignored its own procedures and acted [in  a
manner that was] inconsistent with general industry practices and
good  faith  dealing.  ACC alleges that DCMC  opened  the  second
Dodge  dealership in South Anchorage out of a desire to retaliate
against ACC for bringing its lawsuit.
          ACC is correct that the superior court did not directly
address,   in  its  consideration  of  the  breach  of   covenant
arguments,  the  claim that DCMC violated its own procedures  and
industry practices when it opened the second Dodge dealership  in
south  Anchorage.   However, the superior  court  considered  the
breach  of covenant arguments to be essentially a restatement  of
ACCs  other  claims, and the superior court had  engaged,  in  an
earlier  section of its findings of fact and conclusions of  law,
in  a lengthy discussion of the timeline of events leading up to,
          and the justifications for, DCMCs decision to open the second
Dodge  dealership.  The superior court noted that DCMCs  regional
representative had communicated to his superiors a desire  for  a
second Dodge dealer in south Anchorage in May 1998, and that  the
idea  of  a  second  Dodge  dealership  in  Anchorage  was  being
discussed as early as August 1996.  The superior court also noted
that  Jim  Dimond, the DCMC employee in Detroit  responsible  for
market  studies,  visited Anchorage in October  1999  and,  after
reviewing  additional information, requested  the  opening  of  a
second  Dodge  dealer  in  south Anchorage  on  26  October.  The
superior court then found that the events after May show that  it
was  not a difficult process [to secure a second Dodge dealership
in  Anchorage] given the growth of competition and population  in
South  Anchorage,  and that had Fleck not decided  to  delay  the
request  for  a  market study of a second Dodge dealership  until
after  Project 2000 he would likely have gotten the study and  it
would  likely  have approved the dealership months if  not  years
before October.
          These  findings by the superior court  that the  market
conditions in Anchorage justified the addition of a second  Dodge
dealership, and that DCMC employees had been considering a second
dealership  for  years prior to the conflict and litigation  with
ACC  are inconsistent with ACCs claims that DCMC added the second
Dodge  dealership in violation of its own procedures and industry
practice and in retaliation against ACC.  Therefore, although the
superior  court  made these findings in a separate  section,  the
findings  informed its conclusion that DCMCs decision to  open  a
second Dodge dealership in Anchorage did not violate the covenant
of good faith and fair dealing.
          ACC  also contends that the superior court erred by not
finding  that DCMC breached the covenants of good faith and  fair
dealing  by revoking the Wasilla letter of intent.  ACC fails  to
assert  any specific arguments as to why DCMCs revocation of  the
Wasilla  letter of intent in November 1999 violated the  covenant
of good faith and fair dealing.  In addition, ACC fails to refute
the  superior courts findings that DCMC did not act precipitously
in  November 1999 or without a long history of conduct that  made
it more than reasonable for DCMC to understand that [ACC] was not
going  to  perform as promised.  [ACCs] own decisions, not  DCMCs
bad  faith  nondisclosure caused the cancellation of the  Wasilla
deal.
          ACC also claims that DCMC breached the covenant of good
faith  and  fair  dealing by making additional  unreasonable  and
arbitrary  demands  for  exclusive  facilities.   ACC  does   not
specifically  anchor this claim in either the  objective  or  the
subjective elements of the covenant.  Instead, ACC makes only the
blanket  allegation  that  DCMCs  unilateral  demands  were  both
objectively  and subjectively inconsistent with the  covenant  of
good  faith.   The superior court found that DCMC  did  not  make
unreasonable demands for ACCs Anchorage facilities and operations
and,  accordingly,  concluded  that  DCMC  did  not  violate  the
covenant of good faith and fair dealing in the revocation of ACCs
ability  .  . . to receive Jeeps.  The superior court, therefore,
supported  its conclusion with findings based on the evidence  in
the  record, and ACC failed to offer a specific legal  basis  for
challenging the superior courts findings or conclusion.
          ACCs   strongest  claim  for  establishing  that   DCMC
breached  the  implied covenant of good faith and  fair  dealing,
however,  is  the argument that it raised in the context  of  its
discussion  of  the  fraudulent  misrepresentation  issue:  that,
during the course of its Project 2000 negotiations with ACC, DCMC
made  fraudulent misrepresentations regarding its  intentions  to
establish additional Dodge product lines in the Anchorage region.
The  superior  court found that ACC established  the  first  four
elements  of  fraudulent misrepresentation (a  misrepresentation,
scienter,  intent to induce reliance, justifiable reliance),  but
failed  to establish the fifth element (loss).49  While we  found
that  all  five elements were in fact satisfied, the  first  four
elements   alone  appear  to  be  sufficient  to   satisfy   both
requirements for ACCs claim of breach of the implied covenant  of
good  faith  and  fair  dealing.  The  objective  element   which
requires  each party to act in a manner that a reasonable  person
would  regard as fair50  is clearly met in this case  because  no
reasonable person would regard DCMCs willful misrepresentation as
fair.   The  subjective element  which prohibits one  party  from
acting to deprive the other of the benefit of the contract51   is
also  satisfied  in this case because ACC believed  that  it  was
contracting for peace in the form of assurances that  DCMC  would
not  open  new  dealerships or authorize the sale  of  additional
Dodge  product lines in the Anchorage area, but was  deprived  of
this benefit when DCMC misrepresented its intentions.
          DCMC  permitted  ACC to believe that the  parties  were
negotiating  to  determine the distribution of all  DCMC  product
lines  in Anchorage under Project 2000, while all the while  DCMC
secretly  intended  to  authorize  the  sale  of  at  least   one
additional  Dodge product line.  As a result of  this  fraudulent
misrepresentation,  ACC  never had the  opportunity  to  play  an
actual,  meaningful role in determining the distribution of  DCMC
product  lines  in Anchorage.  Although the franchise  agreements
and  Project 2000 agreements technically provided DCMC  with  the
power  to add dealerships and product lines to Anchorage  without
requiring  the  consent of ACC or any other  dealers,  once  DCMC
began  negotiating with the dealers it had the responsibility  to
behave honestly and straightforwardly.
          Although  ACC  does not directly argue in  this  appeal
that DCMCs fraudulent misrepresentations themselves represented a
breach  of  the implied covenant of good faith and fair  dealing,
the  parties  had  a  full opportunity to present  arguments  and
evidence  on  all  five elements of fraudulent misrepresentation,
and  the superior court made detailed findings in the process  of
concluding  that  DCMCs  actions  did  satisfy  the  first   four
elements.   The  remaining  question  before  us  is  the   legal
determination  of  whether  those findings  and  conclusions  are
sufficient to satisfy the elements required to establish a  claim
for  breach  of  the  implied covenant.  We conclude  that  those
elements  are satisfied.  Accordingly, we hold that DCMC breached
the  implied covenant of good faith and fair dealing when it made
fraudulent  misrepresentations regarding  its  intention  not  to
          establish additional Dodge product lines in the Anchorage region.
          We have previously indicated that the award of contract
damages is an appropriate remedy in the case of a breach  of  the
implied  covenant of good faith and fair dealing.52   As  already
discussed,  however,  ACC has not established  any  losses  as  a
result  of  DCMCs misconduct that would entitle it to  more  than
nominal damages.  A breach of the implied covenant of good  faith
and  fair  dealing does not by itself justify punitive damages.53
We  have  already  noted, however, that in  this  case  the  same
underlying conduct might merit punitive damages because  it  also
constituted the tort of fraudulent misrepresentation.
     D.   The  Superior Court Did Not Err in Finding that the May
          21   Letter   of  Intent  Was  the  Letter  of   Intent
          Contemplated in the May 28 Agreement.
          ACC  has consistently argued that DCMC breached the May
28  agreement by failing to provide a letter of intent  regarding
ACCs  option  to  establish a dealership in  Wasilla.54   In  the
original  trial the superior court found that DCMC  had  provided
ACC  with  a draft letter of intent on May 21, and that  although
ACC might have interpreted the May 28 agreement as requiring DCMC
to provide a subsequent letter of intent after the parties signed
the  May  28 agreement, ACC never made that demand to DCMC.   The
superior court therefore concluded that ACC breached the [May 28,
1999]  Agreement when it failed to sign the Letter of Intent  and
that [t]hat breach excused DCMCs nonperformance of the portion of
the   agreement  concerning  a  dealership  in  Wasilla.    After
reviewing  the superior courts conclusion that ACC  breached  the
May  28 agreement by not signing the May 21 letter of intent,  we
remanded  for additional findings.55  We gave the superior  court
specific directions:
          If it determines that both parties understood
          that the May 28 agreement referred to the May
          21  letter  of intent, then it should  reject
          ACCs breach claim because it seems clear  ACC
          never  would  have  signed  that  letter   of
          intent. If it believes that ACC had in mind a
          different letter of intent, and that DCMC was
          aware   of  this,  then  it  should  consider
          whether  ACC implicitly waived its  right  to
          receive  this letter of intent by failing  to
          complain  when  DCMC did not send  a  revised
          letter  of  intent.  This  would  require   a
          consideration     of    the     circumstances
          surrounding   the  contentious  period   that
          followed  the signing of the letter agreement
          under  the  standards for an  implied  waiver
          described  above.  If there was no waiver  by
          ACC,  then  DCMCs failure to send  a  revised
          letter of intent would amount to a breach  of
          its obligation under the letter agreement  to
          supply  a letter of intent.  Finally, if  the
          court concludes that the parties did not have
          a  meeting  of the minds on what  constituted
          the letter of intent so vaguely identified in
          the  May 28 letter agreement, then the  court
          may  choose  to take briefing on what  remedy
          should issue.[56]
          On   remand,  the  superior  court  found  that   [t]he
reasonable inference is that, when both parties signed the 28 May
letter, they understood that the third bullet about the letter of
intent  referred to the 21 May letter of intent that already  had
been  provided by DCMC to [ACC].  The superior court additionally
found, however, that:
          DCMC  could  not reasonably believe  that  by
          signing  the  28  May letter that  [ACC]  had
          agreed  to  all of the terms of  the  21  May
          [letter of intent].  It did not.  DCMC  could
          only  reasonably assume that [ACC] understood
          the  28  May letter to mean that the  21  May
          [letter of intent] was the starting point for
          what  would become the final Wasilla  [letter
          of intent].
Ultimately,  the  superior court concluded that  ACC  waived  its
right  to modify the May 21 letter of intent through its lack  of
action,  refusal to sign the letter of intent, refusal  to  offer
alternative  proposals to the letter of intent,  and  failure  to
demand  any alternative letter of intent or terms in the  May  21
letter of intent, and that [t]his waiver and the refusal to  sign
the 21 May letter of intent was a breach of the 28 May agreement.
          ACC now argues that the May 21 letter of intent was not
the  letter  of intent contemplated in the May 28 agreement,  and
that  the superior court erred by finding that it was.  ACC  also
argues  that the superior court erred by finding that ACC  had  a
duty  to  request a new letter of intent or to propose or  demand
alternative  terms to the letter of intent, and by  finding  that
ACC  waived its rights to the letter of intent by failing to meet
this  duty.   DCMC  contends that ACCs arguments  are  unavailing
because  the superior courts finding that both parties understood
that the May 21 letter of intent was the one contemplated by  the
May 28 agreement is supported by the evidence.  DCMC also asserts
that  the  superior court correctly concluded that DCMC fulfilled
its  obligation  by sending ACC a letter of intent  (even  though
that  letter of intent may have required some modification),  and
correctly  concluded  that ACC breached its  obligations  by  not
signing  the letter or requesting modifications.  We  agree  with
DCMC.
          First,  the  superior court supported its finding  that
both parties understood that the May 21 letter of intent was  the
letter  of  intent contemplated in the May 28 agreement  with  an
extensive  discussion and analysis of the events and interactions
between  the  parties leading up to the May 28  agreement.   This
analysis  covered  events  spanning  more  than  two  years,  and
included  discussion  of  prior  draft  letters  of  intent   and
agreements from January 1999 and February 1999.  This history  of
draft  letters  of  intent  and agreements  is  relevant  to  the
superior  courts ultimate conclusion both because it demonstrates
that  the parties had already discussed potential terms  for  the
letter of intent, and because it establishes that the language in
          the May 28 letter agreement referring to the letter of intent in
the  future  tense was an artifact of previous draft  agreements.
Therefore, the superior court did not err by concluding, based on
support in the record and sound analysis, that the May 21  letter
of intent was the letter of intent contemplated by the parties in
the May 28 agreement.
          Second,  there  is  no  logical  inconsistency  in  the
superior courts finding that the May 21 letter of intent was  the
letter  of intent contemplated in the May 28 agreement, and  that
the  May  21 letter of intent contained some terms that may  have
required  additional  negotiation.   ACC  argues  that   it   was
internally  inconsistent for the superior court to find,  on  the
one  hand, that the draft letter of intent of May 21 was the  one
contemplated  in the parties May 28 agreement, but on  the  other
[to  find  that]  the May 21 letter was not consistent  with  the
parties  intent and was not final.   This argument  assumes  that
the letter of intent was intended to be final, but nothing in the
May 28 agreement, which referred to the letter of intent only  as
DCMCs  standard five year Letter of Intent, suggested  that  this
was  to  be a final letter of intent.  It is reasonable to assume
that  a  boilerplate  agreement  would  require  some  additional
negotiation and refinement, and therefore that the standard  five
year  Letter  of Intent contemplated by the May 28 agreement  was
not intended as a final letter of intent.
          It  is  important  to  note  that  this  conclusion  is
consistent with the first scenario we offered in our instructions
to  the  superior  court on remand  that both parties  understood
that the May 28 agreement referred to the May 21 letter of intent
and distinct from the second scenario we offered  that ACC had in
mind  a  different letter of intent, and that DCMC was  aware  of
this.57   Accordingly, the superior court  was  not  required  to
consider whether ACC implicitly waived its right to receive  this
[different] letter of intent by failing to complain when DCMC did
not  send  a revised letter of intent.58  Although it is possible
that  ACC hoped to amend one or more terms in DCMCs standard five
year  Letter of Intent, the superior court did not err in finding
that  both parties understood the May 21 letter of intent  to  be
the  standard  letter  of  intent  contemplated  in  the  May  28
agreement, and therefore also did not err by additionally finding
that  no further action was required of DCMC in the absence of  a
specific  request by ACC to negotiate the terms  of  the  May  21
letter of intent.
          By finding that both parties understood that the letter
of  intent  referred to in the May 28 agreement was  the  May  21
letter of intent, and that the parties did not necessarily expect
that the May 21 letter of intent would contain the final terms of
the  letter of intent, the superior court established  that  DCMC
did  not  breach the May 28 agreement for failure  to  provide  a
letter of intent.  The further implication of these findings  was
that  ACC, in order to preserve its right to negotiate the letter
of  intent, had a duty to respond to the May 21 letter of intent.
The superior court found that, despite numerous interactions with
DCMC  in the period immediately following the signing of the  May
28  agreement, ACC never disputed the terms of the May 21  letter
          of intent, offered alternative proposals to the May 21 letter of
intent,  or  demanded  an alternative letter  of  intent.   These
findings  offer  sufficient  support  for  the  superior   courts
conclusion  that the May 21 letter of intent was  the  letter  of
intent  contemplated  in  the  May 28  agreement,  and  that  ACC
breached  the  May 28 agreement by failing to  sign  the  May  21
letter of intent.  The superior court, therefore, did not err  in
reaching this conclusion.
     E.   Additional  Proceedings  Are  Required  To  Award   ACC
          Nominal   Damages,   Consider  Punitive  Damages,   and
          Reconsider Attorneys Fees.
          After determining that DCMC was the prevailing party at
trial,  the  superior court awarded DCMC twenty  percent  of  the
$1,783,513  in  attorneys fees that DCMC incurred,  for  a  total
award  of $356,702.60.  Because we now hold that DCMC did  breach
the implied covenant of good faith and fair dealing and committed
the  tort  of fraudulent misrepresentation, an award  of  nominal
damages  to  ACC is required.  Therefore, we vacate the  superior
courts  determination that DCMC was the prevailing party and  its
award of attorneys fees in DCMCs favor.59  On remand the superior
court  should  award  nominal  damages  to  ACC,  reconsider  the
question of who the prevailing party is in this action, and  then
award attorneys fees accordingly.60
          We  have  previously remanded a case  to  the  superior
court  solely  for entry of judgment for nominal damages  in  the
amount  of  one dollar.61  However, the superior court will  also
need  to  consider whether punitive damages are called  for.   We
have  previously stated that punitive damages are to  be  awarded
with  caution,  after  consideration  of  the  severity  of   the
wrongdoing  and  the need for deterrence: Since punitive  damages
are  assessed as an example and warning to others, and a  primary
concern  of  law is payment of just compensation  for  the  wrong
done,  punitive damages are not favored in law. They  are  to  be
allowed only with caution and within narrow limits.62  To support
a  claim  for punitive damages, the plaintiff must show by  clear
and   convincing  evidence  that  the  defendants   conduct   was
outrageous,  such  as  acts  done with  malice,  bad  motive,  or
reckless indifference to the interests of another.63
V.   CONCLUSION
          We  AFFIRM the superior courts conclusion that DCMC was
not liable for breach of contract. We REVERSE the superior courts
conclusions that DCMC did not breach the covenant of  good  faith
and  fair  dealing  and  did not commit the  tort  of  fraudulent
misrepresentation.  Accordingly, we REMAND to the superior  court
for an award of nominal damages to ACC and to consider whether to
award punitive damages for fraudulent misrepresentation.  We also
VACATE  the  award  of attorneys fees to DCMC.   On  remand,  the
superior  court will need to reconsider prevailing  party  status
and attorneys fees.
_______________________________
     1    129 P.3d 905 (Alaska 2006).

     2     The  description  of the facts in  Anchorage  Chrysler
Center  I,  in turn, was drawn primarily from the superior  court
opinion,  which has not been overtly challenged as wrong  on  the
facts. Id. at 907.

     3     The  company  has changed its name again  and  is  now
Chrysler  Motors LLC. We use DCMC here for consistency  with  the
superior  courts decisions and our opinion in Anchorage  Chrysler
Center I.

     4    Anchorage Chrysler Center I, 129 P.3d at 910.

     5     These  claims were listed separately in  ACCs  opening
brief  from  the first appeal, but we treated them  as  a  single
claim in our opinion in Anchorage Chrysler Center I.  Id.

     6    Id.

     7    Id.

     8    Id. at 913.

     9    Id. at 914-16.

     10    Id. at 918.

     11    Id. at 919.

     12     Rockstad v. Global Fin. & Inv. Co., 41 P.3d 583,  586
(Alaska 2002) (citing Lesnoi, Inc. v. Stratman, 956 P.2d 452, 454
(Alaska  1998)  and Norton v. Herron, 677 P.2d 877,  880  (Alaska
1984)).

     13     Id.  (citing Klosterman v. Hickel Inv. Co., 821  P.2d
118, 122 (Alaska 1991)).

     14     See  Cousineau v. Walker, 613 P.2d 608,  612  (Alaska
1980).

     15    Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985) (citing ONeill Inv. v. Illinois Employers Ins., 636
P.2d 1170, 1175 n.7 (Alaska 1981)).

     16    Id.

     17    See id.

     18    Anchorage Chrysler Center I, 129 P.3d 905, 913 (Alaska
2006).

     19     See  Drake v. Wickwire, 795 P.2d 195, 197-98  (Alaska
1990)  (citing Restatement (Second) of Contracts  250,  251,  253
(1981)).

     20    Restatement (Second) of Contracts  250 (1981).

     21     Id. at 715 (quoting Restatement (Second) of Contracts
250  cmt  b  (1981) and 17A Am. Jur. 2d Contracts   738,  at  752
(1991));  See also K & K Recycling, Inc. v. Alaska Gold  Co.,  80
P.3d  702, 715-16 (Alaska 2003) (concluding that letter from  one
partys attorney that imposed new restrictions after contract  was
formed   was  not  repudiation  because  letter  did  not  convey
unequivocal refusal to perform).

     22     See  id.  (quoting Restatement (Second) of  Contracts
250, cmt b. (1981)).

     23    Anchorage Chrysler Center I, 129 P.3d at 916.

     24    Id. at 915.

     25    Id. at 916.

     26    Id. at 913.

     27     Id. at 914 (citing Restatement (Second) of Torts  525
(1977)).

     28    ERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d
1057, 1059-60 (Alaska 1974) (citing Beaulieu v. Elliot, 434  P.2d
665, 670-71 (Alaska 1967)).

     29     See id. at 1060 (holding that superior court did  not
err  in instructing jury to consider awarding damages beyond cost
of  item  injured  by  defendants negligence, including  business
interruption damages).

     30     ACC  did  not  allege  any other  specific  kinds  of
consequential losses in its argument on appeal.

     31    Anchorage Chrysler Center I, 129 P.3d 905, 916 (Alaska
2006).

     32    Id.

     33    Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985).

     34     Zok  v.  State,  903 P.2d 574, 577-78  (Alaska  1995)
(quoting 1 Marilyn Minzer et al., Damages in Tort Actions   2.10,
at 2-18 (1993)).

     35     Id. at 577 (citing Ivy v. Wal-Mart Stores, Inc.,  777
S.W.2d 682, 684 (Mo. App. 1989).

     36    Anchorage Chrysler Center I, 129 P.3d at 914.

     37    Giammanco v. Giammanco, 625 N.E.2d 990, 1001 (Ill. App.
1993).

     38    Id. at 999.

     39    Id. at 1000-01.

     40    See supra Part IV.B.1.

     41    Anchorage Chrysler Center I, 129 P.3d 905, 914 (Alaska
2006) (citing the Restatement (Second) of Torts  525 (1977)).

     42    Id. at 918-19.

     43    Id. at 918.

     44    Id. at 919.

     45    Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska
1997).

     46    McConnell v. State, Dept of Health & Social Serv., Div.
of  Med.  Assistance,  991 P.2d 178, 184  (Alaska  1999)  (citing
Chijide v. Maniilaq Assn, 972 P.2d 167, 172 (Alaska 1999)).

     47    Id.

     48    Id. (quoting Chijide, 972 P.2d at 172).

     49     See  Anchorage Chrysler Center I, 129 P.3d  905,  914
(Alaska  2006)  (citing the Restatement (Second)  of  Torts   525
(1977)).

     50    McConnell, 991 P.2d at 184.

     51    Id.

     52    See ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153-54
(Alaska  1988) (noting that we have only awarded contract damages
in  cases involving breach of the covenant of good faith and fair
dealing implied in employment contracts).

     53    Id. at 1154.

     54     Anchorage Chrysler Center I, 129 P.3d at 917 (In  its
complaint, ACC claimed by implication that DCMCs failure to  send
a new letter of intent was a breach of contract.).

     55    Id. at 917-18.

     56    Id. at 918.

     57    Id.

     58    Id.

     59    See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 619
(Alaska 1996) (vacating attorneys fee award and remanding for new
determination of prevailing party status in light of decision  to
reverse superior court on issue of partys unpaid suspension).

     60     See  Day  v.  Moore, 771 P.2d 436, 437 (Alaska  1989)
(granting   superior  court  broad  discretion   in   determining
prevailing party).

     61     Zok  v.  State,  903  P.2d  574,  579  (Alaska  1995)
(declining  to  follow the approach adopted by  courts  of  other
jurisdictions that have refused to reverse a judgment merely  for
the purpose of permitting the recovery of nominal damages).

     62     Alaska  Placer Co. v. Lee, 553 P.2d  54,  61  (Alaska
1976).

Brandner v. Hudson, 171 P.3d 83, 89 (Alaska 2007) (quoting
Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995)); AS
09.17.020(b).

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