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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Safar v. Wells Fargo Bank, N.A. (7/15/2011) sp-6577

Safar v. Wells Fargo Bank, N.A. (7/15/2011) sp-6577, 254 P3d 1112

        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,   email 


YVAN SAFAR,                                     ) 
                                                )       Supreme Court No.  S-13710 
                Appellant,                      ) 
                                                )       Superior Court No.  3AN-07-09159 CI 
        v.                                      ) 
                                                )      O P I N I O N 
WELLS FARGO BANK, N.A.,                         ) 
                                                )      No. 6577 - July 15, 2011 
                Appellee.                       ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Mark Rindner, Judge. 

                Appearances:       Hugh G. Wade and Marion C. Kelly, Wade, 
                Kelly   &   Sullivan,   Anchorage,   for   Appellant.      Patrick   B. 
                Gilmore, Atkinson, Conway & Gagnon, Inc., Anchorage, for 

                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 
                Stowers, Justices.   [Christen, Justice, not participating.] 

                STOWERS, Justice. 


                In June 2006 Yvan Safar, a contractor and sole owner and shareholder of 

Safar   Construction,   Inc.,   contracted   with   developer   Per   Bjorn-Roli,   sole   owner   and 

shareholder of Norway Estates, LLC, to construct six units in a 12-unit condominium 

project in Girdwood for a "not to exceed" price of $2,990,434. Wells Fargo Bank agreed 

----------------------- Page 2-----------------------

to loan up to $3.3 million to Norway to finance the project.  By early May 2007 Norway 

had paid Safar the entire amount of his contract and Wells Fargo had disbursed the entire 

loan, but the units were not complete.  Safar contends that he offered to use his personal 

funds to continue to meet payroll until Wells Fargo could devise a solution to the cost 

overruns, and that Cindy Jobe, a vice president of Wells Fargo who was responsible for 

disbursing  and  managing  Norway's  loan,   repeatedly   promised   that   Safar   would   be 

reimbursed.    Jobe denies making any such promise.         Safar continued to work on the 

project and use his personal funds to make payroll until Wells Fargo initiated foreclosure 

proceedings in July 2007.   Safar sought damages of at least $500,000 for personal funds 

advanced to continue the project on a theory of promissory estoppel.          After trial, the 

superior court found that Wells Fargo madeno enforceable promise to Safar to reimburse 

him, dismissed Safar's claims with prejudice, and entered judgment for Wells Fargo. 

Safar appeals.   We affirm. 


       A.      Facts 

               1.     Parties and project 

               Norway Estates, LLC ("Norway") is an Alaska limited liability company 

formed and solely owned by Per Bjorn-Roli, a retired insurance company executive. 

Norway planned to build a 12-unit condominium project in Girdwood ("the Project"). 

               Yvan Safar, an experienced contractor and sole proprietor, formed Safar 

Construction, Inc. in September 2006 for the purpose of contracting with Norway to 

build six of the condominium units.  Safar was the sole officer, director, and shareholder 

of Safar Construction. 

               In July 2006, Wells Fargo Bank, N.A. ("Wells Fargo") agreed to loan up 

to $3.3 million to Norway to finance construction of the first six units of the 12-unit 

                                              -2-                                        6577

----------------------- Page 3-----------------------

condominium project. Bjorn-Roli did not cosign in his individual capacity or personally 

guarantee payment of the loan.          Cindy Jobe, a vice president of Wells Fargo and a 

"knowledgeable   and   experienced"   loan   officer,   originated   and   was   responsible   for 

administering the loan. 

                On June 26, 2006, Safar Construction contracted with Norway to complete 

the six units by November 20, 2006 on a "cost plus" basis for a "not to exceed" price of 

$2,990,434.      Safar prepared the contract and cost schedules with Bjorn-Roli based on 

rough estimates from plans that "were not completely detailed" because Safar did not 

have sufficient time to complete them.  Safar hired a bookkeeper, Carol Howerton, as a 

subcontractor to track costs and do payroll.  Safar paid himself wages as an employee of 

Safar   Construction;   he   received   $45   an   hour  and   overtime.   Safar   also   planned   to 

purchase one of the six units for approximately $750,000. 

                2.     Construction and overruns 

                Safar did not complete the six units byNovember 20, 2006, and prospective 

purchasers began to cancel their reservations.          From December 2006 to March 2007, 

Safar reported to Norway that the project was on budget; Norway made the same reports 

to Wells Fargo.      According to Safar, the project was delayed because of "all kinds of 

unforeseen problems," such as municipal digging restrictions, a buried electric cable, 

foundation problems, and heavy rain and snow.               Safar testified that he remained on 

budget throughout the winter notwithstanding the delays, but by February/March 2007 

it became "really obvious" that he was experiencing cost overruns. 

                Initially, Safar believed that he could use the 18% markup included in the 

construction   contract   price   to   cover   the   overruns. By   March   22,   2007,   Bjorn-Roli 

determined that the overruns were at least $700,000, and Safar knew that he would need 

                                                 -3-                                            6577

----------------------- Page 4-----------------------

more money to complete the Project, but neither Bjorn-Roli nor Safar informed Wells 


                Later in the spring of 2007, Safar and Bjorn-Roli informed Wells Fargo that 

Safar    was   over   budget    by  approximately      $100,000;     neither   Safar  nor   Bjorn-Roli 

expressed concern about the overruns, and Bjorn-Roli did not request a loan increase. 

Wells Fargo honored every draw request submitted by Norway and fully advanced the 

$3.3 million loan. Safar was out of money by April 20, 2007; he withdrew $10,000 from 

his personal account to cover payroll on April 20th, but many bills remained unpaid. 

                3.      Meetings with Jobe 

                In late April, Safar and Bjorn-Roli met with Jobe to discuss cost overruns 

on the Project.   They informed Jobe that overruns totaled approximately $250,000, and 

Jobe asked them to "refine and confirm" the number.               When Safar and Bjorn-Roli met 

with Jobe a second time on May 7, 2007, Safar gave Jobe a written cost estimate of 

$590,000   to   complete   the   Project   but   did   not disclose   that   there   were   unpaid   bills. 

Bjorn-Roli told Safar and Jobe that he was not going to put any of his own money into 

the Project to cover overruns or pay Safar any more than the contract price of $2.9 


                According to Bjorn-Roli, Jobe stated that it would take a "couple more 

weeks to get some sort of approval to go above the bank loan limit," and that she would 

need   approval   from   others   at   the   bank   before   she   could   provide   additional   funds. 

According to Bjorn-Roli, Safar told Jobe that he could take part of his down payment for 

the condominium he was planning to purchase to cover payroll if Jobe promised that he 
would get his money back, and Jobe assured Safar that he would get his money back.1 

        1       When asked exactly what Jobe said, Bjorn-Roli stated: "She said, of course 


                                                  -4-                                               6577 

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                 According to Jobe, she made no promise to reimburse Safar.  She testified 

that   the   parties   discussed   releasing   some   of  the   funds   from  the   expected   closing   of 

Safar's unit to help fund the overruns but that she made no commitments, no agreements 

were reached on the material terms of such an arrangement, and there was no discussion 

of Safar's down payment.  She also testified that the "resolution" they agreed upon was 
that   Wells   Fargo   would   try   to   increase   Norway's   loan   by   $250,000   to   $300,000.2 

According to Jobe, neither Safar nor Bjorn-Roli said anything about not proceeding with 

construction at the late April or May 7th meetings. 

                 Safar testified that he informed Jobe and Bjorn-Roli at the April meeting 

that he was running out of money and would have to shut down the Project unless they 

came up with "some solution as far as funds."              Safar testified that Bjorn-Roli and Jobe 

discussed the possibility of using proceeds from the sale of Safar's unit, for which a 
Certificate of Occupancy3 had been issued, to complete the Project.  According to Safar 

and   Bjorn-Roli,   Safar   told   Jobe   and   Bjorn-Roli   at   the   May   7   meeting   that   Safar 

Construction had no more funds and would need to stop working if Wells Fargo could 

not provide any additional funding.  Safar testified that  "Bjorn-Roli and Vice President 


. . . .  Of course he'd get his money back.          And she thought that was a good solution to 
this dilemma." 

        2        This amount was seen as a sufficient "fix" because Bjorn-Roli had indicated 

that he could get by with $250,000 to $300,000 in addition to proceeds from the pending 
sales of two units. 

        3        A Certificate of Occupancy is a document issued by the municipality after 

a   building   official   has   inspected   a   building   project   and   found   no   violations   of   any 
ordinance, plat note, or building or zoning code.  See Spinell Homes, Inc. v. Municipality 
of   Anchorage,      78   P.3d   692,   698    (Alaska    2003)    (citing   3  KENNETH      H.  YOUNG, 
ANDERSON 'S AMERICAN LAW OF ZONING  19.03, at 362 (4th ed. 1996)). 

                                                    -5-                                              6577

----------------------- Page 6-----------------------

Cindy Jobe definitely didn't want to stop the construction" because of two pending sales, 

so Safar offered to use his own funds to cover payroll for a week until Jobe could find 

another solution. Safar claims that Jobe made a "direct promise" to him that the personal 

money he used to cover the payroll would be returned to him. 

               After the May 7, 2007 meeting, Bjorn-Roli left for a planned vacation in 

Europe.   When Bjorn-Roli returned to Anchorage, he met with Jobe to discuss possible 

solutions   to   overruns;   Safar   was   not   present. Jobe   proposed   loaning   Norway   an 

additional $250,000 to $300,000 to be secured by a personal guarantee from Bjorn-Roli, 

with Bjorn-Roli or Safar to fund any additional sums needed to complete the Project; 

Bjorn-Roli refused to guarantee any loan personally, and no agreement was reached. 

According to Jobe, she also suggested the idea of taking a partial payment at the closing 

of the unit Safar planned to purchase and putting the rest back into the Project, and 

Bjorn-Roli "was receptive" to the idea.  Jobe testified that this never occurred, however, 

because the bank was "waiting for a unit to close," which never occurred. 

               4.      Post-meeting construction 

               Following the May 7 meeting, Safar continued to use his own funds to make 

payroll for "four to five weeks."  According to Safar, Jobe repeated her promise that he 

would be reimbursed "week after week" when Safar called Jobe to check on the status 

of his reimbursement. 

               According to Jobe, when Safar called to ask if the bank had reached a 

resolution, she told Safar that the bank was working on a resolution but never discussed 

what the resolution might be or made any promises. 

               5.      Wells Fargo foreclosure of the Project 

               At the end of June, Jobe turned over the Norway account to Gerard Diemer 

in the Credit Management Group at Wells Fargo.  On June 28, 2007, Safar's bookkeeper 

                                                -6-                                          6577

----------------------- Page 7-----------------------

faxed an estimate to Diemer of $446,000 to complete construction on the Project and 

$529,000 in outstanding payables; the total estimated overrun was $975,000.                       After 

several meetings with Bjorn-Roli, Wells Fargo decided that no reasonable work-out 

agreement could be reached and decided to proceed with foreclosure. 

                Diemer visited the Project site in early July and found Safar and his team 

working.      When Diemer discovered that  Bjorn-Roli had not informed   Safar   that   he 

should   stop   working,   Diemer   called   Bjorn-Roli,   informed   him   that   Safar   was   still 

working, and handed the phone to Safar so that Bjorn-Roli could tell Safar to stop. 

                Safar informed Diemer that he had a tape recording of Jobe promising him 

that he would be reimbursed for the money he spent on the project.  Diemer conducted 

an   extensive   investigation   into   Safar's   allegations   and   concluded   that   there   was   no 

evidence to substantiate any of Safar's claims that Jobe had promised to reimburse him. 

Safar later admitted to Diemer that he had no recording and that a friend had suggested 

he "bluff" about the tape to get the bank to reimburse him. 

                6.      Safar's mortgage 

                Safarapplied for a mortgage with Residential Mortgage in early April 2007. 

Safar moved into a unit in the Project in early May 2007 and agreed to pay $2,500 in rent 

to Bjorn-Roli until his mortgage closed. Residential Mortgage ultimately denied Safar's 

mortgage.     After the foreclosure, Safar refused to vacate the unit.          Wells Fargo evicted 

Safar on May 1, 2008, but agreed to forgive April 2008 rent. Safar therefore owed Wells 

Fargo $11,917 in past due rent ($2,500 per month from November 7, 2007 to March 31, 

        4       After Wells Fargo foreclosed on the Project, Safar's rent was owed to Wells 


                                                  -7-                                               6577 

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        B.      Proceedings 

                On August 9, 2007, Wells Fargo filed a Complaint for Appointment of a 

Receiver Under AS 09.40.240.  Norway resisted appointment of a receiver, moved to 

dismiss the complaint, and filed a counterclaim and third-party complaint against several 

bank officers.  In its counterclaim complaint, Norway asserted 15 claims for relief based 

on predatory lending practices, breached/repudiated agreements/promises/commitments, 

fraud, intentional and/or negligent misrepresentations, breached covenant of good faith 

and fair dealing, estoppel, breach of the Unfair Trade Practices and Consumer Protection 
Act,5 interference with prospective economic opportunities and contracts, waste, and 

defamation.      Safar   and   Safar   Construction    filed   an   Answer   and   Counterclaim   in 

Intervention, asserting direct claims against Wells Fargo based on promissory estoppel, 

fraudulent misrepresentation, and unjust enrichment. Safar also asserted that he was the 

equitable owner of the unit he occupied and sought to foreclose a claim of lien in the 

amount      of  $310,341.53     for  unpaid   wages    from   Safar   Construction     and   personal 
expenditures for labor and materials6 that he had filed. 

                On April 7, 2008, Superior Court Judge Mark Rindner dismissed Safar's 

claim of equitable ownership or title to his unit, and ruled that Norway's claims against 

Wells   Fargo   and   its   employees   be   submitted   to   binding   arbitration. The   arbitrator 

rejected all of Norway's claims, finding that there was no contract between Wells Fargo 

and Norway to loan additional money to Norway.  On April 9, 2009, the superior court 

approved a stipulation between Wells Fargo and Norway by which all of Norway's 

        5       AS 45.50.471-561. 

        6       Safar earned $22,623.73 in wages for his work on the Project, but he never 

cashed his payroll checks issued by Safar Construction. 

                                                 -8-                                              6577 

----------------------- Page 9-----------------------

claims were dismissed and Wells Fargo waived any claim against Norway for costs and 


                 Safar's    remaining     claims    against   Wells    Fargo   proceeded      to  trial  on 

September       1,  2009.    Safar  conceded       that  Safar   Construction's      claim   of   lien  for 

outstanding wages should be dismissed and limited his claim to damages of "not less 

than $500,000" for personal funds advanced to pursue completion of the Project made 

in reliance on Wells Fargo's repeated assurances that he would be reimbursed. 

                On September 11, 2009, after hearing testimony from Safar, Howerton, 

Jobe, and Diemer, and considering the depositions of Bjorn-Roli and LaRose (the loan 

officer at Residential Mortgage who reviewed Safar's loan application), which were 

admitted into evidence, the trial court issued extensive findings of fact and asked both 

parties to file memoranda arguing the legal consequences of the findings and to propose 

conclusions of law.  Wells Fargo filed a memorandum and proposed conclusions of law; 

Safar did not.     Safar filed detailed objections to the court's findings of fact, which the 

trial   court   overruled   without   comment.       The  court   issued   its   conclusions   of   law   on 

October 12, 2009. 

                The   superior   court   made   three   conclusions   that   are   relevant   to   Safar's 

appeal:   (1)   Wells   Fargo   did   not   make   a   binding   contractual   commitment   to   pay   or 

reimburse Safar's expenses because Jobe neither made an offer to Safar or Bjorn-Roli nor 

set forth all material terms of a contract; (2) Wells Fargo did not commit to releasing 

funds from the closing of Safar's condo purchase because there was no agreement on the 

material terms of the alleged agreement; and (3) Safar's claim for promissory estoppel 

was barred because Jobe did not make a definite promise encompassing all the material 

terms   of   a   contract,   and   because   Safar   could   not   have   reasonably   relied   upon   his 

understanding that there was a "promise" when the promise "did not identify the amount 

                                                   -9-                                              6577

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of money to be advanced, the terms of repayment, or even who would be responsible for 

the repayment." 

                On November 2, 2009, the court issued a final judgment dismissing Safar's 

claims with prejudice and entering judgment for Wells Fargo for unpaid rent in the 

amount of $11,917 plus interest, costs, and attorney's fees. 

                Safar appeals. 


                We review the trial court's findings of fact, including those on the credibility 
of witnesses, for clear error.7   We will find clear error if, after a thorough review of the 

record, we come to a "definite and firm conviction that a mistake has been made."8                  We 

review factual findings in the light most favorable to the prevailing party below.9              "[W]e 

grant   'particular   deference   to   the   trial   court's   factual   findings   when   they   are   based 

primarily on oral testimony, because the trial court, not this court, performs the function 
of judging the credibility of witnesses and weighing conflicting evidence.' " 10 

                There are four elements of a cause of action for promissory estoppel: (1) an 

"actual promise" that induced action or forbearance; (2) the action induced was actually 

foreseen or reasonably foreseeable; (3) the action amounted to "a substantial change in 

        7       Romero v. Cox, 166 P.3d 4, 7-8 (Alaska 2007) (citing Soules v. Ramstack, 

95 P.3d 933, 936-37 (Alaska 2004)). 

        8       Id. at 8. 

        9       Id. (citing N. Pac. Processors, Inc. v. City & Borough of Yakutat, 113 P.3d 

575, 579 (Alaska 2005)). 

        10      Wee v. Eggener, 225 P.3d 1120, 1124 (Alaska 2010) (quoting Millette v. 

Millette, 177 P.3d 258, 261 (Alaska 2008)). 

                                                  -10-                                            6577

----------------------- Page 11-----------------------

position"; and (4) enforcement of the promise is necessary in the interest of justice.11  The 

only element at issue in this case is whether there was an "actual promise" that induced 
action or forbearance, which is a question of fact that we review for clear error.12 


                The central issue raised by  Safar on appeal is whether the trial  court's 
findings of fact were clearly erroneous.13 

                Safar argues that the trial court clearly erred in: (1) failing to make specific 

factual   findings   about   conflicting   accounts   of   the   May   7   meeting;   (2)   not   finding 

promissory   estoppel   on   the   facts   of   the   case;   and   (3)   finding   that   Wells   Fargo   was 

entitled to costs, interest, and attorney's fees. 

                In response, Wells Fargo contends that:  (1) the trial court determined that 

Wells Fargo's account of what happened at the May 7 meeting was more credible than 

Safar's account; (2) Safar did not establish the elements of promissory estoppel; and 

(3) any promise made by Wells Fargo was a conditional promise that was not breached. 

        11      See Alaska Trademark Shellfish, LLC v. State of Alaska, Dep't of Fish & 

Game, 172 P.3d 764, 766 (Alaska 2007) (quoting Zeman v. Lufthansa German Airlines, 
699 P.2d 1274, 1284 (Alaska 1985) (applying RESTATEMENT (SECOND) OF CONTRACTS 
 90 (1979)) (internal quotation marks omitted)). 

        12      See Crook v. Mortensen-Neal, 727 P.2d 297, 300 (Alaska 1986) (implying 

all   four   elements   of   promissory   estoppel   should   be   reviewed   as   questions   of   fact); 
4 RICHARD A. LORD, WILLISTON ON CONTRACTS  8:7, at 152 (4th ed. 2008) (noting that 
many jurisdictions consider both "the existence and the scope of [an actual 'promise'] 
to be questions of fact, and [a finding] . . . that the promise exists [will stand] on appeal 
unless it is clearly erroneous."). 

        13      Safar states: "The single issue in this case is whether a promise was made." 

He also argues that the trial court "mischaracterized" his claim by analyzing it under a 
contract-based theory of recovery.          Thus, promissory estoppel is the only legal theory 
Safar argues on appeal. 

                                                  -11-                                             6577

----------------------- Page 12-----------------------

                  We   find   that   the   record   supports   the   trial   court's   findings   of  fact   and 

conclusions of law. 

        A.	     The Superior Court's Findings Of Fact Were Neither Incomplete Nor 
                Clearly Erroneous. 

                Safar argues that the trial court dismissed Safar's claim without making any 

specific findings about the conflicting evidence regarding what was said at the May 7 

meeting.  He also argues that the trial court did not make specific factual findings on any 

of the factual issues Safar raised in his trial brief, and that the factual findings the court 

did make were "problematic." 

                In response, Wells Fargo asserts that the court's detailed findings of fact 

reveal that the court found Wells Fargo's account of what occurred at the May 7 meeting 

to be more credible than Safar's account. 

                We hold that the superior court's findings of fact were neither incomplete 

nor clearly erroneous. 

                1. 	    The trial court did not fail to make specific findings regarding 
                        Jobe's alleged promises to Safar. 

                The superior court made 46 detailed findings of fact, many of which address 

the conflicting accounts of what Jobe allegedly promised to Safar. Specifically, the court 

found that Safar did not prove that the parties came to "a meeting of the minds" at the 

May 7 meeting as to all material terms of a contract to lend, noting that Safar could not 

articulate the details of any commitment by Jobe or Wells Fargo to reimburse him for 

expenses   he   incurred   after   May   7,   such   as   "the   amount   of   the   loan,   the   terms   of 

repayment, the security, the interest rate, or even if the bank's supposed commitment was 

a loan or a gift." 

                The superior court also explicitly found that Safar did not prove a "promise" 

to lend with definite terms enforceable under the doctrine of promissory estoppel, or a 

                                                  -12-	                                            6577

----------------------- Page 13-----------------------

"binding commitment, definite in all its material terms" to release proceeds of the bank's 

collateral from the expected closing of Safar's condo. The court further found that, even 

if   Jobe   had   made   a   binding   commitment,   the   commitment   was   not   broken   because 

Residential Mortgage did not approve Safar's loan, Safar did not purchase the unit, and 

"Wells Fargo had no duty to release proceeds from a closing that never occurred." 

                 Safar's assertion that the trial court dismissed his claims without making 

specific findings about the conflicting evidence regarding Jobe's alleged "promise" is 
therefore incorrect.14 

                 2.	     The     trial  court's    findings     of  fact   regarding      Jobe's alleged 
                         promises to Safar were not clearly erroneous. 

                 Safar suggests that any findings of fact the court did make regarding Jobe's 

alleged promises to Safar were "problematic."  Wells Fargo argues that the trial court's 

findings regarding the conflicting accounts of what Jobe stated during and after the 

May 7 meeting illustrate that the trial court found Wells Fargo's version of the facts to 

be more credible than Safar's version. 

        14       Safar also claims that the trial court erroneously failed to find that Bjorn- 

Roli's account of the May 7 meeting, described in a letter Bjorn-Roli wrote ten weeks 
after the meeting, was "substantially accurate."  The trial court's failure to make specific 
factual findings regarding the accuracy of Bjorn-Roli's letter was not clearly erroneous 
because the trial court provided more than enough "detailed and explicit findings" to give 
this   court   a   "clear   understanding   of   the   basis"   of   its   decision.  Urban   Dev.   Co.   v. 
Dekreon,   526   P.2d   325,   (Alaska   1974)   (quoting  Alaska  R.  Civ.  P.  52(a))  (internal 
quotation marks omitted).  Although Bjorn-Roli's letter generally corroborates Safar's 
account  of   the  May  7   meeting,   both   Bjorn-Roli's   and   Safar's   accounts   of   Jobe's 
statements support the superior court's finding that the statements were not sufficiently 
definite to constitute an "actual promise" under promissory estoppel.  See infra Part B. 
Thus, Bjorn-Roli's corroboration would not have materially contradicted the court's 
ultimate legal determination. 

                                                   -13-	                                             6577

----------------------- Page 14-----------------------

                Although the trial court did not make specific credibility findings, it is clear 

that the trial court found Wells Fargo's witnesses' accounts of what occurred to be more 

credible than Safar's witnesses' accounts:  all 46 findings of fact support Wells Fargo's 
account of the conversations that occurred between Safar and Jobe.15  During trial, the 

superior court articulated why it found Safar's account of the meeting problematic: 

                [T]he whole problem I'm having . . . is [Safar] almost seems 
                to be saying that the Bank is going to give him this money to 
                pay him off, and I don't believe that for a second occurred, or 
                that if he believed that or thought that, I certainly am having 
                trouble believing that it was reasonable for him to do it . . . . 
                I'm going to have to resolve this as a credibility question. 

A review of the record supports the trial court's findings that Jobe did not make any 
legally enforceable promises to Safar.16 

        B.	     The Superior Court Did Not Err In Not Finding Promissory Estoppel 
                On The Facts Of The Case. 

                Safar    contends     that  the   court committed       legal   error  by   not   finding 

promissory estoppel because all of the elements of promissory estoppel were satisfied. 

                 Four elements are needed to prove a claim of promissory estoppel:  (1) an 

"actual promise" that induces action or forbearance; (2) the action is actually foreseen 

or   reasonably   foreseeable;   (3)   the   action   is   a   "substantial   change   in   position";   and 

        15      Safar notes that the superior court adopted           "nearly all" of Wells Fargo's 

proposed findings of fact "without edit or comment" but offers no explanation for why 
he did not submit his own proposed findings of fact.  It is not clearly erroneous per se for 
a trial court to adopt one party's proposed findings of fact.             See    Indus. Indem. Co. v. 
Wick,   680 P.2d 1100, 1108 (Alaska 1984) ("A trial court is . . . entitled to adopt findings 
and conclusions prepared by counsel, so long as they reflect the court's independent view 
of the weight of the evidence"). 

        16      See infra Part B. 

                                                  -14-	                                            6577

----------------------- Page 15-----------------------

(4) enforcement of the promise is necessary in the interest of justice.17            Safar argues that 

the evidence presented at trial proved all four elements.             The superior court found that 

Safar's claim for promissory estoppel failed because he did not prove the first element, 

and   because   his   reliance   on   any   alleged  statements   by   Jobe   would   not   have   been 


                We conclude that Safar's promissory estoppel claim fails because the record 

does not support a finding that Jobe made an actual promise to Safar. 

                  An "actual promise" is one that is "definitive, . . . very clear, . . . and must 
use precise language."18       To be enforceable under promissory estoppel, a promise must 

be "analytically identical" to the acceptance of an offer in contract law: it must "manifest 
an unequivocal intent to be bound."19          None of the alleged statements by Jobe to Safar 

constituted an "actual promise" for promissory estoppel purposes. 

                 Safar argues that Jobe's assertion to Safar at the May 7 meeting that "of 

course" he would be repaid and the "words and conduct" Jobe used to "reinforce" the 

promise      after  May    7  constitute   an  "actual    promise."     He    cites  cases   from   other 

jurisdictions   in   which   lenders'   assurances   to   borrowers   that   they   would   "support," 

"help," or "work with" borrowers were sufficient "promises" to find that promissory 

estoppel applied. In contrast to the cases he cites, Safar was not a borrower, Jobe was not 

        17      Alaska Trademark Shellfish, LLC v. State of Alaska, Dep't of Fish & Game, 

 172 P.3d 764, 766 (Alaska 2007) (quoting Zeman v. Lufthansa German Airlines, 699 
P.2d 1274, 1284 (Alaska 1985) (applying RESTATEMENT (SECOND) OF CONTRACTS  90 
(1979)) (internal quotation marks omitted)). 

        18      Id. at 767 (quoting Simpson v. Murkowski, 129 P.3d 435, 442-43 (Alaska 

2006)) (internal quotation marks omitted). 

        19      Id.   (quoting Brady  v.   State,   965   P.2d   1,   6-11   (Alaska   1998))   (internal 

quotation marks omitted). 

                                                  -15-                                             6577

----------------------- Page 16-----------------------

authorized   to   approve   loans,20    and   neither   Safar   nor   Wells   Fargo   contends   that   the 

possibility of Safar applying for or receiving a loan from Wells Fargo was discussed as 

a potential solution. 

                Safar also argues that a promise "may be simple or complex," and that 

Jobe's promise to Safar was simple: if he advanced his personal money for payroll, he 

would get his money back.  He argues that a "general rule of contract" is that contracts 

may be enforced even if the parties have left open "some matters to be determined in the 

future" by examining the agreement itself or "other usage or custom" that is independent 
of a party's "mere 'wish, will and desire.' "            He cites Bank of Standish v. Curry,21 in 

which the court held that a borrower who went to a bank "for the express purpose of 

learning   whether   he   would   receive   financing"   could   enforce   the   bank's   promise   to 

"continue to support" his business under promissory estoppel because the terms of the 

promise "could be objectively determined from the nature of the transaction, and the 
ten-year history of the customary loan practices between the parties."22 

        20      Diemer and Jobe testified that Jobe, as a loan officer, had absolutely no 

authority to create, approve, or modify a loanwithout approval from supervisors, and that 
her alleged promises would be "very much out of line and uncharacteristic" because "it 
isn't something that can happen."  Diemer testified that it is appropriate and common for 
loan officers to talk to their borrowers about "things that, together, the borrower and the 
bank can do to resolve issues . . . [w]hen borrowers get into trouble," and that he believed 
this is what Jobe had done.   Although Safar contests the court's finding that Jobe lacked 
authority and argues that Jobe had "apparent authority" to promise that Safar would be 
reimbursed, Safar's testimony reveals that he was aware that any "solution" would have 
to involve Norway and be approved by others at Wells Fargo. 

        21      500 N.W. 2d 104, 110 (Mich. 1993). 

        22      Id.  at   111.    There   is   language   in  Curry   that   actually   supports   Judge 

Rindner's determination that Jobe's alleged promise "did not identify the amount of 
money to be advanced, the terms of repayment, or even who would be responsible for the 

                                                  -16-                                                6577 

----------------------- Page 17-----------------------

               In contrast to the situation in Curry, Safar was not Wells Fargo's borrower, 

he had no history of borrowing from Wells Fargo, and he was not seeking to extend or 

receive a loan.     Thus, there were no prior dealings, usage, or customs from which a 

definite promise could be gleaned. 

               In  Valdez   Fisheries   Development   Association,   Inc.   v.   Alyeska   Pipeline 
Service Co.,23 we held that a prospective lessee's promise to a prospective lessor that he 

would receive a lease contract was not enforceable through promissory estoppel because 

the promise was ambiguous as to the lease duration and price.  Similarly, the trial court 

in this case found that Safar could not articulate the basic terms of any agreement, such 

as the amount of money that would be advanced, the terms of payment, or who would be 

responsible for the repayment.  The court also found that "Jobe did not make a definite 

promise as to all the material terms of a contract," and noted that Safar's own testimony 

established that "Jobe did not make any binding commitments to Norway and/or Safar." 

               The record supports the trial court's findings. When asked at trial about the 

specifics of Jobe's promise at the May 7 meeting, Safar stated:  "I was assured that there 

would be no problem . . . . [Jobe] said you will get that money back as soon as the Bank 

and Bjorn-Roli have, you know, the extension of the loan or whatever terminology they 

use."   Safar testified that there were not "any specifics discussed about it," but that he 

was under the "assumption" that the money would "go directly from the Bank" to him. 

When asked why he assumed Wells Fargo would pay him directly despite the fact that 

all Project funds he had received had come from Norway, Safar stated: 


repayment."  The Michigan Supreme Court explained:  "For a promise to loan money in 
the future to be sufficiently clear and definite, some evidence must exist of the material 
terms of the loan, including the amount of the loan, the interest rate, and the method of 
repayment."  Id. at 113. 

        23     45 P.3d 657, 670 (Alaska 2002). 

                                               -17-                                          6577

----------------------- Page 18-----------------------

                Because [Jobe] was repeating it over and over and reassuring 
                me and encouraging me to finish unit three so it can be sold, 
                and since I knew she was the banker dealing with the project, 
                I basically trusted her . . . . [I]t was clear to me she was the 
                key person on the project. 

On   cross-examination,   Safar   testified   that  the   word   "loan"   was   never   used   in   his 

discussions   with   Jobe,   and   that   there   were   "different   terms   used,   arrangement   or 

whatever they were discussing.          How they were going to do it, I don't know.            I wasn't 

privy to that."   Thus, according to Safar's own testimony, the proposed contract was not 
definitive as to any material terms.24 

                Because none of Jobe's alleged statements were definite as to the amount 

or terms of Wells Fargo's reimbursement to Safar, we affirm the superior court's finding 

and conclusion that Jobe did not make any promise or commitment to Safar sufficient to 
meet the "actual promise" element of promissory estoppel.25 

V.           CONCLUSION 

        24      The fact that Safar and Bjorn-Roli were both aware that Jobe did not have 

authority to increase the amount of the loan toNorway also supports a finding that Jobe's 
statements were not an "actual promise."  In Simpson v. Murkowski, 129 P.3d 435, 444 
(Alaska 2006), we held that a 1993 letter from Governor Hickel to the Speaker of the 
House of Representatives was not an "actual promise" because it "expressly noted" that 
the program the letter proposed was subject to the legislature's approval.  Similarly, the 
superior court's finding that Safar knew Jobe lacked the authority to approve additional 
funds and Safar's testimony that he understood that Norway would have to be involved 
in whatever "arrangement" was made to reimburse him support a finding that Jobe's 
statements were not actual promises. 

        25      Because we conclude that Jobe's statements to Safar do not satisfy the first 

element   of   promissory   estoppel,   we   need   not   determine   whether   any   of   the   other 
elements of promissory estoppel were met. 

                                                 -18-                                            6577

----------------------- Page 19-----------------------

             For the reasons described above, we AFFIRM the superior court's judgment 

and award of damages, costs, and attorney's fees. 

                                         -19-                                    6577
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