*1 $146,715.00 Jury Total Verdict - 7,335.75 Negligence Pit’s 5% $139,379.25 Subtotal - 52,447.55 Principal of Settlement 86,931.70 Subtotal Prejudgment Interest 8% - +12,865.89 3/11/77 1/17/79 99,797.59 Subtotal +10,830.52 82(a) atty Rule fees $110,601.65 5,298.31 Costs $115,899.96 Principal Judgment conclusion, the trial court is affirmed
on all issues to its method of
computing judgment principal. the final
On that only, issue the trial court is re- versed and the case remanded for the sole
purpose of recomputation in accordance opinion. COMPTON, JJ.,
MATTHEWS participating. MULLEN, Appellant,
Frank E. CHRISTIANSEN, Mitchell, Charles John Panamaroff, Reft, Jr., Allen Gust Katelnikoff, Appellees. Fred CHRISTIANSEN, Mitchell, Charles John Panamaroff, Reft, Jr., Allen Gust Katelnikoff, Appellants, Fred Dorothy Earl BLASER and Blaser, Appellees.
Nos. 4986. Supreme Court Alaska.
April *2 Colver, Warren & As-
John W. C. Colver sociates, E. Anchorage, appellant for Frank Mullen. Hedland, Grandjean, James D.
John S. Friedman, Hedland, Anchorage, Fleischer & appellants Charles Chris- appellees for and Panamaroff, tiansen, Mitchell, Allen John Reft, Katelnikoff. Jr. and Fred Gust RABINOWITZ, J., and C. CON- Before BURKE, NOR, and COMP- MATTHEWS TON, JJ.
OPINION
COMPTON, Justice. 1975,Appellees Charles Chris- October Mitchell, Panamaroff, tiansen, John Allen Jr., Reft, and Fred Katelnikoff Gust [the brought suit to recover Fishermen] 100,000 pounds of price approximately to Trans-Alaska fish sold and delivered [TASP], partnership a Products Seafood Ellis, Raymond Patrick Pletni- comprised of Bedwell, koff, Mullen, Robert and Frank Compa- Management Trans-Alaska Services suit, the Fisher- ny, Inc. In the [TAMSCO]. men named Mr. and Mrs. Earl Blaser also of the fish. guarantors price of the trial, argued the Fishermen in At 1975, they entered into an September late with oral contract for the sale of fish TASP through agent, Pletnikoff. In the alter- native, they argued that Pletnikoff was the Blaser, agent of Mr. who was the ostensible the al- buyer disputed of the fish. Mullen leged contract between and the Fish- TASP ermen, compo- as well as the existence and sition of TASP as a time that contract was entered into. trial, re- After a three-week in of the special turned a verdict favor Fishermen, TASP, finding: (1) partner- ship, existed late Pletnikoff, Ellis, Mullen, partners had as its TAMSCO; (2) dealing Bedwell and Fishermen, Pletnikoff acted on behalf TASP; (3) from bought TASP fish Fishermen; (4) the Blasers did be guarantee the Fishermen would denied the paid for their fish. The court against Fishermen’s motion for new trial Blaser, as Mullen’s Mr. and Mrs. as well ker, Blaser, alternative motions for notwith- who was buying interested in standing verdict, time, for new trial and for fish. At the Pletnikoff was stock- judgments. Judgments TAMSCO, amendment of the corporation holder in an Alaska approxi- entered the Fishermen totaled engaged project management mately $72,400.00in principal. grantsmanship. Over Mul- president Ellis was objection, granted len’s the court the Fish- corporation. Pletnikoff took leave from his *3 job ermen’s motion attorney’s for fees in the pipeline on the and went to work for $26,809.00, amount of the total amount TAMSCO to locate fish. The four men by billed counsel. Mullen appeals exchanged from the telephone ideas over the about judgments on the verdict and from the or- company formation of a that would denying post-trial ders his He motions. also engage buying selling of fish. In appeals from the awarding order the Fish- early August, Pletnikoff went to California ermen at eight per interest to meet with Mullen and Bedwell. September, cent from 1975 and full attor- visit, During negoti- Pletnikoff’s the men ney’s appeal fees. The Fishermen from the agreement ated an to together do business judgment in favor of Mr. and Mrs. Blaser. as partnership a with the to intent later appeals The two are consolidated. incorporate. duty part- Pletnikoff’s to the below, nership to a For the reasons was locate source of fish. stated we affirm Ellis to provide temporary the trial court’s was office denial of Mullen’s services. motions for Mullen and Bedwell were to supply directed verdict and for not- Mullen, buyer. Bedwell and withstanding the Pletnikoff verdict or new trial. On signed agreement a appeal, partnership Pletni- Fishermen seek reversal of the koff was take signa- to to Alaska for Ellis’ decision in favor only of Blaser in the event ture.2 we determine that aas matter of law the Blaser, TASP, evidence shows not was the California, While Pletnikoff was in buyer of the Consequently, fish. dowe not partners agree- also entered into written arguments.
reach their provided ments with Blaser that for “an to right exclusive to sell” Blaser all seafood brief, argues In his Mullen the trial court products one year for and a “firm offer” of erred in awarding compensation for the 30,000 240,000 pounds approximately of a non-party claim fisherman. We do not fish— August salmon—on or before 1975. address this issue because Mullen to failed Blaser was to establish a letter of credit at points appeal.1 raise it his We reverse Anchorage the First National Bank of for the trial court’s awarding prejudg- order 30,000 the order of fish.3 per ment interest at eight Sep- cent from tember attorney’s and full fees. Mullen, Bedwell, Pletnikoff and Ellis held meeting telephone a partnership week
I. Statement of Facts after Pletnikoff They returned to Alaska. In the summer of 1975 agree- Mullen and Bed- amending discussed well, California, ment, residents of disagreed southern con- but later about what Pletnikoff, resident, tacted an Alaska meeting. to see during had decided Pletnikoff if anyone he knew in Alaska in the fish contacted he and in fishermen knew late business. Mullen knew a August early September commodities bro- he traveled to Appellate 210(e); Corp. agreement according 1. prepared Rule was to Armco Steel Plet- specifications. Isaacson Structural Steel nikoff’s and Mullen’s (Alaska 1980); Wetzler, Wetzler v. venture, Spletts below, 3.Prior n.2 Saxton v. the Karluk discussed toezer, opened Ellis an First National account at the Anchorage in Bank of TASP’s name. Mullen Conflicting sign evidence at trial showed that Ellis Bedwell failed the bank resolution and authority, signed agreement, signed signature version but submitted cards amended, simply attempt complete that he had or did in an the documentation sign agreement. present- required by Evidence was used this bank. Pletnikoff ed to show that Pletnikoff consulted with Ellis was in Kodiak and Kar- bank account while he by telephone during negotiations and that luk. days for four The Fishermen fished and El- fishing villages with Blaser
several 100,000 pounds took in By mid- the boat tender attempt lis in an to locate fish. unloading pro- of the fish at the many fish. The September, Pletnikoff had contacted a result plant delayed was and as fishermen, cessing he had been unsuccessful 70,000 thrown pounds of the fish had to be locating partnership. for the a source of fish remaining spoilage. supply processed fish overboard due Blaser was anxious to 18, 1975, 30,000 pursuant fish were sold pounds of clients and on proceeds at this trial and the meet Pletnikoff be- court order he went to Kodiak to proc- the court to the Department cause it was rumored that the were disbursed essor, Fishermen. the boat tender and the might open fishing Fish and Game approximate- were awarded The Fishermen Karluk. $72,400.00 damages under the con- ly Kodiak, Pletnikoff talked with two of tract. possibility buy- about the the Fishermen *4 ing They general fish at Karluk. reached a Motions for Directed Verdict II. Mullen’s understanding price of what the would be. New Trial Judgment and for N.O.V. or Department After the of Fish and Game argues that the trial court erred Mullen open fishing announced its decision to at motion for a directed verdict denying in his Karluk, Pletnikoff secured the services of a judgment notwithstand- and his motion for at La- boat tender to load the fish Karluk for a ing the verdict or in the alternative goon arranged processor for a seafood and generally new trial. Alaska RCiv.P. See process the fish. He and Blaser flew to and 59. opening Karluk the afternoon before the of fishing. reviewing denial of motions for a In Karluk, judgment directed verdict or notwithstand
At Blaser and Pletnikoff first verdict, weigh court not to ing the went to a at the home of one of the Fishermen, conflicting judge credibility evidence or the they in casual engaged where Rather, of witnesses. it is to determine fishing. conversation about A few hours evidence, later, whether the when viewed in the meeting the local fishermen held a non-moving par most favorable to the Co-op building, they light where the discussed fish, persons could not including ty, is such that reasonable offers made for the Pletni- n the judgment differ in their as to facts. pay per pound koff offer to two cents over Elkins, (Alas Levar v. 604 P.2d 603-04 the other offers. Pletnikoff and the 1980); Alyeska Pipeline Compa spokesmen for the Fishermen then met to ka Service Service, Inc., 604 P.2d agreement. ny discuss the details of the v. Aurora Air (Alaska 1979). During negotiations, the Pletnikoff and did not disclose the nature of their Blaser A motion for a new trial will be relationship. A few of the Fishermen had granted support evidence to the when the known prior Pletnikoff to this venture. completely lacking slight verdict is or is so They thought represented he business unconvincing and as to make the verdict firm, but the they did not know name of unjust. unreasonable and plainly Sloan They the firm or the names of its officers. Atlantic Richfield acting only were sure he was not on his own Cummings, Ahlstrom thought behalf. The Fishermen Pletnikoff (Alaska 1964). If there is an decision, and were working together Blaser in some de evidentiary jury’s basis for the type arrangement, of business did nial of a new trial must be affirmed. Olson 1964). McRae, particulars. know the Pletnikoff and represented Blaser to the Fishermen that We will not interfere with the trial court’s exceptional in the most had letters of credit that would be discretion purchase large quanti- prevent miscarriage available for the of circumstances and to of of v. Whittier negotiations justice. City ties fish. The were com- of Whittier 216, pleted p. fishing Corp., at about 8:00 The Fuel Marine m. & began shortly thereafter at 12:01 a. m.
SAQ¶ thought prof- We have reviewed the record and Mullen had an interest in the evidentiary conclude that there was an ba trip by its of the venture. The Blaser and decision, jury’s sis for the and just Pletnikoff Kodiak before the Karluk plainly verdict was not unreasonable and trips they venture was similar to other took Further, unjust. persons reasonable could pursuant Alaska in search of around fish differ in their as to the facts. agreements between TASP Blaser. Thus the properly issues were submitted to Furthermore, Pletnikoff used the TASP jury. while bank account he was Kodiak and Karluk. presented prove The evidence partnership existed as a in late 1975 TASP testimony partners at trial and that Mullen a partner was included the self-serving, was often evasive and incon- conflicting testimony part- often of the four verdict, special jury sistent. ners about the formation was acting found that Pletnikoff on behalf activities, its subsequent partner- negotiations and that TASP TASP ship (including “corrected” We buyer was the the fish. believe the copy and three signature versions one, question turning upon is a close page), agreements the written with Blaser credibility of the witnesses. The had executed partnership, name of the opportunity to observe the witnesses telephone meeting minutes accept and we its decision. See Jackson v. bank Partnership agreements documents. White, 532 n.4 interpreted are according principles argues Mullen the evidence was insuffi- Cavitch, of contract law. Z. generally 1 See *5 show the cient to that TASP and Fishermen Organizations Business (1981). section 14.01 because, mutually assented to a contract he The properly could the lan- consider contends, testimony the uncontradicted of guage parties, of and conduct the the ob- they the Fishermen showed that intended
jects sought accomplished, to be the and Blaser, to enter into a contract with who surrounding negotiation circumstances the negligently them believe that Pletni- led to of the contract to determine whether the argues koff agent. was his Mullen further agreed four men partners.4 to associate as that reasonable minds could not differ on presented We find the that evidence at trial this conclusion and the trial court erred in support jury’s was sufficient to the conclu- denying his motions for directed and verdict sion that a partnership TASP existed as and notwithstanding the verdict. partner that Mullen of was a at the time the Karluk venture. agree. We The do not evidence showed thought that Pletnikoff was the Fishermen Conflicting presented evidence was toas else, acting of on behalf someone but whether Pletnikoff acted on of behalf identity principal. not know of the during did the negotiations TASP the contract They the Fishermen. knew Blaser was somehow involved in Pletnikoff testified that he working “company” represented, did not know who he the Pletnikoff but was for when negotiated he agreement, the he were unsure of Blaser’s role. The contract, interpreting objective process weighing 4. of a the is to The the evidence of the give expectations surrounding to effect the reasonable of circumstances the parties. Wright Vickaryous, resolving disputes pertaining the 490, v. 598 P.2d to parties’ 497 To the rea- ascertain the the intent is for trier of fact. Lewis parties, expectations Co., Anchorage Asphalt Paving sonable of the we to look v. 535 P.2d language disputed agreement, 1188, 1975); Day the of the (Alaska the 1194 v. A & G language parties, 440, 1974). and conduct of ob- (Alaska Constr. 443 jects sought accomplished to be and the sur- particularly applicable is in this This rule case rounding circumstances time the con- jury’s depended largely decision because Id.; Wirum, negotiated. tract was Peterson upon necessarily testimony oral involved 1981). (Alaska P.2d 870 & n.7 See credibility determining the witnesses of Beauchene, also Innes testimony Ivey, Penn v. whose conflicted. See (Alaska 1962) (in writing, the absence of a partnership may proved by existence of a be transactions, declarations). conduct and conclude, therefore, behalf of TASP. We is to that Pletni- evidence sufficient show denying not err in negotiat- that the trial court did acted koff on behalf TASP motions for directed verdict a Mullen’s ing partially the contract. As disclosed judgment notwithstanding the verdict or a was contract principal, TASP motion for new trial. by who was agent on its behalf made apparent scope of au- acting within the his Interest Prejudgment III. expressly ex- thority, unless the contract the Fish- cluded TASP.5 The evidence that objection, the trial court Over Mullen’s a ermen to enter into contract intended inter- the Fishermen awarded “company” represent- with Blaser or with annum eight per per rate of cent est at the subject varying ed Pletnikoff was At the time the September from that the evi- interpretations.6 We conclude due, the rate interest in money became presented to show that dence Fisher- 45.45.010(a). was six cent. per the state AS enter a contract with men intended to into that the with Mullen agree The Fishermen sup- is principal Pletnikoff’s sufficient peri- awarded for the prejudgment interest port jury’s determination TASP 12, 1976, should have prior od buyer was fish. per cent. Drickersen been at the rate of six Drickersen, argues the evidence was Mullen next however, argue, 1979). The Fishermen insufficient to show that TASP and the raising it in Mullen waived this issue mutually Fishermen to a assented contract points appeal. on statement perceive because Pletnikoff did not himself entering as into contract on behalf of Ordinarily, we will not consider argument without TASP. This is merit. appel that are not included in the issues self-serving parties testimony points appeal. on See lant’s statement of subjective to their intentions or under however, If, supra. note 1 the issue was standings probative is not evidence adequately briefed raised at the trial and parties whether the entered into a contract opposing and if counsel are suffi appeal parties issue, or who contract are. Pe may apprised of the we con ciently Wirum, terson v. State-Operated sider it. Hootch v. Alaska *6 1981); Day 793, (Alas v. A & G Construction 528 n.58 System, School 536 P.2d 808 440, (Alaska 1974). P.2d 444 The could the is 1975). adequately ka Mullen raised objective properly look to manifestations of it sue the trial court and briefed on before pre Pletnikoff’s intent to enter into a appeal. contract The Fishermen were able to adequate with the Fishermen on to pare reply behalf of TASP and an this issue. We judgments find that the contract was entered into on therefore conclude that the Elec., Hegeman-Harris acting agent, inquire is an but he 5. See Maxwell’s Inc. v. fails to into Canada, Ltd., 1149, authority. delegated agent’s Co. of 567 P.2d 1152 the extent of the (Wash.App.1977); (Second) of knowledge Restatement regarding There is no similar rule of Agency (1958). section 186 identity Agency principal. of 3 the the C.J.S. (Second) Agency 412, The Restatement (1973). of section section at 259 4(2) (1958) following provides the definition of partially reviewing principal, “If the of a party disclosed other the trial court’s denial Mul- agent may judg- has that the is or be notice motions for directed verdict and for len’s acting principal verdict, for a but no notice of the notwithstanding has must the we de- ment principal’s identity, principal the for whom the termine whether the evidence when viewed in agent acting partially princi- is is a disclosed light most favorable to the Fishermen is rule, pal.” general par- As a disclosed or “[a] minds could not differ on such that reasonable tially subject liability principal to disclosed is weigh It is not our task to the outcome. acting upon agent an contracts made within credibility judge or to wit- evidence authority proper if made form and with vary- susceptible If is nesses. the evidence understanding principal par- is that the interpretations, question ing is one Agency ty.” (Second) Restatement of section Alyeska jury. Pipeline Aurora Air Serv. Co. v. (1958). 144 Serv., Inc., 1090, (Alaska 1979); 604 P.2d 1094 Sons, 1016, Inc., In State v. Neal & 489 P.2d America, Peck, Holiday 520 Inns of Inc. P.2d v. (Alaska 1971), 1019 we that a third indicated 87, (Alaska 1974). 92 peril acts knows at his when he the other
1351 MATTHEWS, Justice, should be amended to reflect in which CON- NOR, Justice, joins, concurring. interest of per at rate six cent from 25, 1976, 1975, 12, September agree I all opinion of the majority eight per the rate of cent thereafter. portion that which declines to decide the propriety of the non-party award fisherman, Malutin, because did Mullen not IV. Attorney’s Fees raise that issue in his points statement of on trial, A after month counsel for the Fish- appeal. The issue was raised in Mullen’s ermen stated an affidavit that his firm opening given brief and distinct and ade had quate billed Fishermen for attorney’s appellees fees attention there. The have $26,809.00. prejudice by not claimed in the reason of Mullen’s amount of Under Alaska failure to express issue in his statement 82, Civil granted Rule the trial court points of on appeal. Where an is issue Fishermen’s motion for an award of attor- set points forth in a appeal statement of on ney’s fees in this amount. adequately is argued and is there no prejudice position this court has taken the 82(a) Civil Rule outlines a sched the issue should be decided ule attorney’s of fees to be awarded based State, 35, merits. Putnam v. 629 P.2d 39 money on the recovered (Alaska 1980); n.2 v. Hootch Alaska State prevailing party. of purpose The Rule is82 Operated 793, System, School 536 P.2d 808 “compensate prevailing party only par State, 1975); n.58 Torres v. tially for attorney fees justifiably in 788, (Alaska 1974); Lapham 793-94 v. Hallett, curred.” Davis v. 587 P.2d Haines, Town of (Alaska 1978) (emphasis original). 1962). also, Fairbanks, City See Miller v. of The of attorney’s award full fees “mani (Alaska 1973); v. Steward festly unreasonable” in the absence of a bad (Alas of City Anchorage, 391 P.2d faith defense or vexatious conduct by the ka Fairview Utility Public District losing party. Id. at 1171-72. The trial City Number One Anchorage, court must state its reasons when it view, makes In my position an of attorney’s award be followed It fees varies should here. com ports policy possi with the that cases where 82(a). from the schedule in Rule Farns ble be decided on the only merits.1 The Steiner, worth purpose points on ap the statement superior court not explain did peal required 210(e) by Appellate Rule is to attorney’s award full fees. Because the opposing party inform of the issues to this, necessary it is to remand the case. be appeal por raised on the so that those The court must either state its reasons for tions of the germane trial court record making an award that varies from the such issues bemay designated. Steward *7 schedule set forth in 82(a) Civil Rule or City Anchorage, 391 P.2d 732. Since adhere that schedule. is there here no claim that this has purpose The superior judgments court’s are AF- appellants’ been frustrated failure there good is FIRMED as no reason not to consider issue to all matters question merits. award attorney’s fees interest. These are issues REMANDED for Turning merits, to the Mullen contends further proceedings with consistent this court erred in in the including opinion. $6,500.00 Panamaroff some claim due Malu- See, Rogers, Benson, ion); 219, Societe Internationale v. (Alas Guard v. 357 P.2d 438 223 197, 1087, Morris, 1255, 979, Mely 1968); U.S. 78 v. S.Ct. 2 L.Ed.2d 1265 ka 982 Independent (1958); Corp. Rojcewicz, 1966); Productions Oaks v. Inc., 1960); Loew’s (2d (Alaska 1966); Palzer v. Serv-U-Meat 283 F.2d 843 Cir. Poor, (Alaska 1978); Zeller v. Sa P.2d 206-07 Champion Herbert, Hedberg, Oil Co. v. nuita (Alaska 1976) (Boochever, J., Concurring Opin was no evi-
tin. Mullen asserts that there assigned dence that Malutin his claim had is Factually argument to Panamaroff. without merit shows because the evidence into Malutin and Panamaroff entered an under which Panamaroff agreed to sell Malutin’s fish in Panama- name,
roff’s collect for them and turn over Thus, proceeds to Malutin. to use the language 17(a), of Civil Rule Panamaroff party
was “a with whom or in whose name a contract has been made for the benefit of
another” and as such he was authorized to joining
“sue in his own name without him the for whose benefit the action court, therefore, brought. ...” The trial refusing did not err in to reduce Panama- n roff the amount which Pana- maroff must remit to Malutin. HONSINGER,
Fred S. E. Lenore Honsinger, Smith, Theodore J. Smith, Petitioners,
Sara J. Alaska, every STATE of and each and Devisee, Unknown, Heir or Known and Executor and Administrator the Es Danner, George tate of and all other Parties, Legal Entities, Successors and Assigns, Unknown, Claiming any Right,
Title, Estate, Lien or Interest in the Property any part Real or thereof De Complaint, Respondents. scribed in the No. 5622. Supreme Court of Alaska.
April 16, 1982. *8 Reeves, Faulkner, Banfield,
James N. Holmes, Doogan Anchorage, petition- & for ers. Gen., Levy, Atty.
Madeleine R. Asst. An- chorage, respondents.