source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    David FLETCHER, d/b/a Alaska Electric Company, Appellant, v. TRADEMARK CONSTRUCTION, INC., an Alaska corporation, and United Pacific Insurance Company, a Pennsylvania corporation, Appellees.
    No. S-10609.
    Supreme Court of Alaska.
    Dec. 5, 2003.

      Joe P. Josephson, Josephson & Associates, P.C., Anchorage, for Appellant.
    William K. Renno and Christine V. Williams, Oles Morrison Rinker & Baker LLP, Anchorage, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Alaska Electric Company appeals the superior court’s dismissal of its contract action against Trademark Construction, contending that the court made insufficient findings of fact and conclusions of law when it dismissed the case under Alaska Rule of Civil Procedure 41(b) for failure to prove damages with sufficient certainty. Alaska Electric also contends that the trial court made various errors in its application of Civil Rule 41(b). Because the superior court’s findings of fact are sufficient to indicate the legal and factual bases for its ruling, and because its interpretation of Civil Rule 41(b) was proper, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Appellee Trademark Construction entered into a contract with the State of Alaska to renovate the seventh and eighth floors of the Bank of America Center in Anchorage in December 1998. Trademark’s successful bid included a subcontract bid of $74,724 for electrical work by appellant Alaska Electric. The general contract called for the work to be completed by January 31,1999. The subcontract specified that time was of the essence, and that if changes or additional work were ordered by the state, Alaska Electric would have to obtain a written order from Trademark specifying and approving the work. The subcontract also governed how costs would be proved if the contract was changed:

6.1.2 In the event that [Trademark], or [the State of Alaska] shall order changes in Subcontract work, or order additional work, the Subcontractor shall furnish a price breakdown with his proposal in connection with the change order, itemized as required by [Trademark], or the [State of Alaska]. Unless otherwise directed, the breakdown shall be in sufficient detail to permit an analysis of all material, labor, equipment, and overhead costs as well as profit, and shall cover all work involved to accomplish the change, whether deleted, added, or changed.

Based on its certified payroll' records, it appears that Trademark worked on the project from approximately December 28, 1998 to March 6, 1999. Various changes were made to the project, and the parties initially sought to authorize every change.

On December 22, 1998 the state issued drawings and a list of changes known as “Revision No. 2,” which made various changes, additions, and deletions to the original project. The parties submitted to the state an initial proposal of $40,824 to cover the extra electrical subcontract work on January 8, 1999; in a January 25 meeting between the parties and the state, this was reduced verbally to $24,096 because the state decided that the initial proposal had included work not required by Revision No. 2. The state requested further substantiation of the details of the reduced proposal at that time, but none was provided. In a January 28, 1999 document apparently drafted by Alaska Electric, Trademark promised to compensate Alaska Electric for additional work including “[a]ll revisions of #2 dated December 22, 1998, [a]ll extras associated with liebert units, ... i.e., additional work that was not clearly defined on the original prints ,.. plus all additionally incurred administrative services.” In this document Trademark agreed “to pay Alaska Electric for all time and materials expended in completing this work, plus profit.” On March 30, 1999 Alaska Electric sent an invoice to Trademark totaling $92,835 for labor alone on the additional parts of the contract. Trademark demurred, and attorneys for the parties worked for some time to try to resolve the dispute. By March of 2001 Alaska Electric’s final invoice for labor and materials reached $154,475; with profit and interest, its final bill totaled $230,476.

B. Proceedings

Alaska Electric filed suit against Trademark in September 2000, alleging that Trademark owed at least $200,000 on the unpaid “extra” and revised parts of the contract, and also alleging business damage, a claim that was later dismissed. A bench trial commenced before Superior Court Judge Peter A. Michalski in early December 2001, and plaintiff Alaska Electric called two witnesses: David Fletcher, the head of the business and negotiator of the above contracts, and Terrance Hix, a volunteer data manager at the Alaska Electric office.

1. Evidence at trial

Fletcher and Hix testified extensively about the project and its expenses and explained numerous documents relating to their labor and materials costs. Three exhibits and one handwritten chart were especially important at trial. The first was plaintiffs Exhibit 10. This was the certified payroll for the entire project submitted by Alaska Electric to the Alaska Department of Labor, which Hix created from time cards filled out by foremen at the job site. The certified payroll documented regular and overtime hours worked, hourly pay rates, and the type of benefits set by the union, although not the union benefits themselves. The certified payroll did not distinguish between hours worked on the contents of the original contract and hours worked to fulfill “extra” or “Revision No. 2” requirements.

The second important exhibit was plaintiffs Exhibit 59. This was a spreadsheet that purported to differentiate between hours worked on the original contract and hours worked on the additional and Revision No. 2 requirements. Hix prepared this spreadsheet during the completion of the project partly from time cards completed by foremen at the job site and partly on the basis of when the work was completed. “Work order numbers” on the spreadsheet reflected different job codes assigned by Fletcher and Hix to the two sets of contracts. The final row of the spreadsheet totaled the total regular and overtime hours worked on the two aspects of the project. On cross-examination, the witnesses testified that the foremen who filled out the time cards had not always been provided with the project codes that differentiated between work on the original contract and work on the revisions, and that not all of the time cards contained those differentiated codes. There was also testimony that this exhibit listed more work hours for certain workers in certain weeks than could be substantiated from the time cards.

The third important exhibit was plaintiffs Exhibit 43. This was also a spreadsheet, and it was created by Hix and Fletcher during February 1999 for the purpose of determining changes in materials needed as a result of the revisions and changes to the original contract. Pricing for the materials was not included. Although the spreadsheet included a “manhours” component for every change, these figures were only Fletcher’s estimates as to how much time each job would take.

The fourth important document was a chart compiled by Fletcher in the courtroom during the trial. Apparently this was how Alaska Electric sought to tie the additional hours from the exhibits described above to the amount of damages sought by Alaska Electric. Fletcher testified that one week before trial Hix had provided him with Quickbooks software that showed that his total labor costs for the contract, including gross wages and benefits paid to the union, totaled $117,656. This software had not been entered into evidence or viewed by Trademark. In order to determine how much of the labor costs had been incurred in the additional and second revision aspects of the contract, Fletcher interpreted the number of standard hours supposedly worked on the original contract, 635.5 hours as listed in Exhibit 54, as representing all of the time actually used to complete the work from the original bid. He assigned all 1,311 other hours, even the overtime originally attributed to completing work on the original contract, to the additional contract and revision. From this he concluded that roughly one-third of his labor costs could be attributed to the original subcontract and roughly two-thirds could be attributed to the revision. Presumably this would mean that two-thirds of $117,656 represented Alaska Electric’s labor costs for the extra work and revision. This chart was not admitted into evidence.

2. Rule 41(b) motion for involuntary dismissal

At the close of the plaintiffs case, Trademark moved for involuntary dismissal under Alaska Rule of Civil Procedure 41(b). Trademark alleged that the contract was a “design-build” contract in which Alaska Electric bore the risk of cost overruns, that Trademark had not authorized the extra work under the contract, and that Alaska Electric had failed to prove its actual damages. However, Trademark did admit that it owed Alaska Electric approximately $10,000 as a result of several change orders, and based that number on three prior change orders plus the state’s estimates of the value of the changes in Revision No. 2.

Judge Michalski granted the motion for involuntary dismissal on December 12, 2001, ruling that Alaska Electric had not met its burden of proving by a preponderance of the evidence that any of its costs could be attributed to the change orders as opposed to overruns on the original subcontract. In particular, he found that the documentary evidence presented did not facially differentiate between materials purchased for the original contract and materials purchased as the result of the revisions, and that after three years the plaintiffs lacked sufficient recall to explain the difference credibly. On December 14 Judge Michalski entered supplemental written findings of fact, in which he further found that Alaska Electric’s failure of record-keeping at the time of the contract had prejudiced its case. He found that the figures in Exhibit 59, which purported to keep track of which hours worked were for the base contract versus the revised contract, were arbitrary, and that Fletcher’s figures for materials costs were unsubstantiated. Judge Michalski also stated that “[t]he mere fact that the bid included 635 hours and Alaska Electric Company used 1,946 hours does not lead to the conclusion that 1,311 hours were due to change orders.” However, because Trademark had admitted to some monetary obligations to Alaska Electric, he awarded $10,220 to Alaska Electric.

Alaska Electric appeals, seeking three types of relief. First, it asks us to direct the superior court to make more specific findings of fact and conclusions of law so that it may file an appeal on the merits. Second, Alaska Electric asks that the superior court be instructed to wait to make its findings under Civil Rule 41(b) until Trademark has presented its case, or to articulate in writing why it declines to do so. Third, Alaska Electric asks us to instruct the superior court that it is entitled in a Civil Rule 41(b) motion to view the evidence in the light most favorable to the non-moving party and that it shall make written findings as to whether and why it chooses to do so. Because the superior court’s findings of fact were adequate to communicate the legal and factual bases for its ruling, and because the superior court interpreted Civil Rule 41(b) correctly, we decline on all three counts.

III. STANDARD OF REVIEW

We use our independent judgment when interpreting a civil rule. We review decisions made under Civil Rule 41(b) for abuse of discretion. We review the trial court’s factual findings under the “clearly erroneous” standard, which is met only if we reach “ ‘a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding.’ ”

IV. DISCUSSION

A. Judge Michalski’s Oral and Written Findings of Fact Were Sufficient To Indicate the Legal and Factual Bases for His Ruling.

Alaska Electric’s primary complaint is that “the trial court’s oral findings of fact, even as supplemented, are so general” that it cannot ask this court “to review each exhibit and all of the plaintiffs testimony in the case-in-chief to determine whether the court below erred in holding that the plaintiffs claim for damages was not clear enough to resist the defendant’s Rule 41(b) motion.” Alaska Electric argues that the trial court disregarded the facts “that Trademark promised to pay for work under change orders on a time and materials basis” and that Fletcher “described at length the work performed above and beyond the original contract.” Alaska Electric also contends that Judge Michalski should have hired a special master to help him sort through the documents presented at trial in order to arrive at properly proven damages. Trademark responds that under Merrill v. Merrill and Roberts v. Brooks findings of fact and conclusions of law need only be “sufficient in quality and quantity to facilitate intelligent review on appeal.” Trademark argues that the bases of Judge Michalski’s ruling are clear and that no special master was called for because the problem was the quality and presentation of Alaska Electric’s evidence rather than the trial court’s difficulty in understanding it.

In Merrill we noted that findings of fact and conclusions of law are required by Civil Rule 52(a) in order to promote precision in the trial judge’s thinking, to establish issues for res judicata and estoppel purposes, and to aid the appellate court on review. In regard to the latter, “it is the duty of the trial court by sufficiently detailed and explicit findings ‘to give the appellate court a clear understanding of the basis of the trial court’s decision, and to enable it to determine the ground on which the trial court reached its decision.’ ” When the trial court dismisses a case on the merits under Rule 41(b), it must make findings of fact under Rule 52(a). Oral findings can be sufficient to satisfy the rule.

It is difficult to determine whether the superior court’s findings of fact are “sufficient to facilitate intelligent review on appeal” when the appellant has not briefed us on its theory of appeal. Nonetheless, Alaska Electric appears to challenge only the court’s finding that it showed an “insufficient nexus” between any given hours worked or materials purchased and the revisions to the contract. The factual findings that led Judge Michalski to this conclusion are clear: he found that Fletcher was unable to testify as to the cost of materials relating to the change orders; that the documents presented did not provide a basis for distinguishing between base and revised materials costs; that the classification of hours worked on the project as “base” or “extra” in Exhibit 59 was arbitrary; and that no evidence supported Alaska Electric’s assumption that all hours not budgeted for in the base contract bid must have been expended as the result of additions and revisions to the contract. These findings are sufficiently detailed to allow us to understand the factual basis of Judge Michalski’s ruling, especially as they relate to the following testimony: (1) Hix and Fletcher testified that they created job codes for the time cards that would «help them distinguish between base and revised contract work, but did not inform some of the foremen who actually filled out the time cards of those codes, and some time cards contained no such codes; (2) the hours spreadsheet/Exhibit 59 contained more hours than the time cards did; (3) Fletcher arrived at his revised contract materials costs amounts by telling his attorney to calculate these amounts from documents which did not always relate only to the revisions and from documents that might have been counted more than once.

Alaska Electric does not appear to challenge the sufficiency of Judge Michalski’s conclusions of law. The legal basis of the ruling was that “the proof of the damages related to any change orders [must be] sufficiently established for the court to grant judgment and that is the burden of the plaintiff,” using a “preponderance of the evidence” standard. Although the court cited no cases it accurately stated Alaska contract law. We have held that:

Although a contractor need not prove damages with mathematical precision, it may only recover those damages which it proves with reasonable certainty. State v. Northwestern Constr., 741 P.2d 235, 237 (Alaska 1987). “Recovery of damages for a breach of contract is not allowed unless acceptable evidence demonstrates that the damages claimed resulted from and were caused by the breach.” Boyajian v. United States, 191 Ct.Cl. 233, 423 F.2d 1231, 1235 (1970).
-The contractor’s failure to present any evidence demonstrating its increased costs justifies dismissal of its claims. Id. at 1235-36.[]

The trial court’s conclusions of law also required an underlying contract interpretation ruling. Alaska Electric appears to have argued at trial that Trademark unilaterally agreed to reimburse it for all costs resulting from any change to the base contract made by any party, whereas Trademark appears to have argued that only changes resulting from Revision No. 2 were at stake and that the subcontract required Alaska Electric to provide very specific proof “in sufficient detail to permit an analysis of all material, labor, equipment, and overhead costs.” Based on his objection to the attribution of 1,311 labor hours to revisions to the contract, Judge Michalski must have rejected the “all costs” argument and concluded as a matter of law that only those changes in the contract attributable to revisions were compensable. We therefore think that the legal basis of Judge Miehalski’s ruling is also sufficiently clear to facilitate review.

The findings did not fail to address any necessary points nor are they internally contradictory; the superior court simply found that Alaska Electric had failed to present evidence showing its damages with reasonable certainty. In such a situation appointment of a special master was not warranted. We hold that Judge Michalski’s findings of fact and conclusions of law are “sufficiently detailed and explicit findings ‘to give the appellate court a clear understanding of the basis of the trial court’s decision, and to enable it to determine the ground on which the trial court reached its decision.’ ”

B. The Trial Court Need Not Justify Its Decision To Rule on the Civil Rule 41(b) Motion at the Close of the Plaintiffs Evidence Rather Than at the Close of the Defendant’s Evidence.

Civil Rule 41(b) provides that the trial court may rule immediately on a motion for involuntary dismissal under that rule, or alternatively “may decline to render any judgment until the close of all the evidence.” Alaska Electric contends that a judge facing a Rule 41(b) motion should have to explain why he or she rules immediately instead of waiting until the close of all evidence, arguing that this would be helpful upon review. But the purpose of granting the trial court discretion as to when to decide a Rule 41(b) motion is to increase the trial court’s flexibility in managing the case, not to increase its workload or provide additional points for appeal. Alaska has traditionally held a pragmatic view of Rule 41(b): “Where plaintiffs proof has failed in some aspect the motion should, of course, be granted. Where plaintiffs proof is overwhelming, application of the rule is made easy and the motion should be denied.” If the trial court refuses to delay ruling on a Rule 41(b) motion, it is because the plaintiff has failed to prove its case for the reasons set out in the court’s findings under Civil Rule 52(a). Nothing would be gained from an additional requirement that the trial court explain why it did not delay ifs ruling. We decline to hold that such an explanation is required under Civil Rule 41(b).

C. The Trial Court May Not Construe the Evidence in the Plaintiffs Favor When Ruling on a Civil Rule 41(b) Motion.

Civil Rule 41(b) provides in part that upon a motion for involuntary dismissal, the trial court may weigh the evidence, evaluate the credibility of witnesses, and render judgment against the plaintiff even if the plaintiff has made out a prima facie case; alternatively the trial court may delay its ruling until the close of all evidence. Alaska Electric contends that the permissive language of Rule 41(b) — “may weigh the evidence” — leaves open the possibility that the judge may construe the evidence in the light most favorable to the plaintiff, similar to the standard for a directed verdict under Civil Rule 50(a) in jury-tried cases. It asserts that the superi- or court erred in failing to recognize that it had the power to consider the evidence in the light most favorable to Alaska Electric. Alaska Electric admits that a memorandum of the Court Rules Attorney demonstrates that the Alaska Supreme Court in 1987 chose the current version of Civil Rule 41(b) — the court may “weigh the evidence ... even if the plaintiff has made out a prima facie case — over another version that would have explicitly required the trial court to view all evidence in the light most favorable to the plaintiff.”

The 1987 rule change overruled our former Civil Rule 41(b) requirement that the trial judge deny a motion to dismiss when the plaintiff has made an unimpeached prima facie case. The change in the text of the rule brought it into compliance with the analogous federal rule, about which WRIGHT & Miller concludes that “[t]he trial judge is not to draw any special inferences in the nonmovant’s favor nor concern itself with whether the nonmovant has made out a pri-ma facie case.” We conclude that Judge Michalski did not err in refusing to view the evidence in the light most favorable to the plaintiff.

V. CONCLUSION

Because Judge Michalski’s findings of fact and conclusions of law provide sufficient details of the legal and factual bases of his ruling, and because there are no requirements that a trial court in ruling on a Rule 41(b) motion (1) explain why it declines to defer a decision until the close of all the evidence or (2) construe the evidence in the light most favorable to the non-moving party, we AFFIRM the decision of the superior court.

      . Alaska R. Civ. P. 41(b) provides:
      Involuntary Dismissal — Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event that a motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then weigh the evidence, evaluate the credibility of witnesses and render judgment against the plaintiff even if the plaintiff has made out a prima facie case. Alternately, the court may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

      .Judge Michalski noted in his oral findings of fact that he weighed the evidence rather than viewing it in the plaintiff’s favor.

      . Ford v. Municipality of Anchorage, 813 P.2d 654, 655 n. 2 (Alaska 1991).

      . Farmer v. State, 788 P.2d 43, 50 (Alaska 1990).

      . Crittell v. Bingo, 36 P.3d 634, 638 (Alaska 2001) (quoting In re Estate of Kottke, 6 P.3d 243, 245 (Alaska 2000) (quoting Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978))).

      . 368 P.2d 546, 548 (Alaska 1962).

      . 649 P.2d 710, 711 (Alaska 1982).

      . Id. at 711; see also Merrill, 368 P.2d at 548.

      . Alaska R. Civ. P. 52(a) provides in relevant part:
      (a) In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and judgment shall be entered pursuant to Rule 58.... Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court.... Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).

      . Merrill, 368 P.2d at 548.

      . Id. (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955)).

      . Winn v. Mannhalter, 708 P.2d 444, 451 (Alaska 1985).

      . Noey v. Bledsoe, 978 P.2d 1264, 1275-76 (Alaska 1999).

      . By filing this request for more specific factual findings in the supreme court, Alaska Electric has exhausted its appeal as of right pursuant to Alaska Rule of Appellate Procedure 202(a) and AS 22.05.010(a) ("[A] party has only one appeal as a matter of right from an action or proceeding commenced in ... the superior court.”).

      . Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assocs., 795 P.2d 793, 798-99 (Alaska 1990), vacated in part on other grounds on reh’g by, 823 P.2d 632 (Alaska 1991).

      . The subcontract demands proof "in sufficient detail to permit an analysis of all material, labor, equipment, and overhead costs.” General contract law, in contrast, requires only a "reasonable basis" for the award; "[w]e will not require that a plaintiff in a contract suit present an accountant's balance sheet in order to substantiate his damages.” City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 224 (Alaska 1978). Plaintiffs in general contract cases can prove damages through the "actual costs” method, the “jury verdict” method, or sometimes even the disfavored "total costs" method. See Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 324-25 (Alaska 1992) (defining "actual costs” method as adding up each expense incurred through breach; "jury verdict” method as allowing jury to consider actual cost data, estimates by experts, and calculations from similar projects; and "total cost” method as permissible only where (1) the nature of the losses makes it impossible or highly impracticable to determine damages with reasonable accuracy, (2) plaintiff’s bid or estimate was realistic, (3) its actual costs were reasonable, and (4) it was not responsible for the added expenses); Kandik Constr., 795 P.2d at 798 (defining “total cost” method of determining damages for breach as the difference between the original bid or estimate and the final cost). The trial court appears to have determined that none of the standards for using the total costs method was met.

      . Generally, appointment of a special master pursuant to Civil Rule 53 should be reserved for cases in which (1) the issues are unusually complex or specialized; (2) discovery is particularly document-intensive; (3) resolving discovery disputes will be especially time-consuming; (4) the parties are particularly contentious or obstructionist; or (5) a master will promote a more speedy and economical determination of the case. Peter v. Progressive Corp., 986 P.2d 865, 870 (Alaska 1999).

      . Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955)).

      . Rogge v. Weaver, 368 P.2d 810, 813 (Alaska 1962), overruled on other grounds by Alaska Supreme Court Order No. 798 (January 14, 1987), cited with approval in 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2573.1, at 501 (2d ed.1994).

      . See Howarth v. Pfeifer, 423 P.2d 680, 682 (Alaska 1967) (holding that in determining motion for directed verdict, court views evidence in light most favorable to non-moving party).

      . Alaska Supreme Court Order No. 798 (January 14, 1987).

      . Before the 1987 amendment to the rule, Rogge v. Weaver required the trial court to deny a motion for involuntary dismissal when the plaintiff had made an unimpeached prima facie case. Rogge, 368 P.2d at 813.

      . Fed.R.Civ.P. 52(c).

      . Wright & Miller, supra note 19, § 2573.1, at 497-98 (citation omitted). Even as early as 1987 when the changes to Civil Rule 41(b) were ordered, members of our court had already concluded that the effect of the new rule was to foreclose the possibility that the old light-most-favorable rule would continue to apply to Civil Rule 41(b) decisions. Thomas v. Anchorage Tel. Util, 741 P.2d 618, 633-34 (Alaska 1987) (Matthews, J., concurring).


text:
    Mark C. RAUSCH, Appellant, v. Michelle DEVINE, Appellee.
    No. S-10660.
    Supreme Court of Alaska.
    Dec. 5, 2003.

      Allison E. Mendel and Sherry Clark, Mendel & Associates, Anchorage, for Appellant.
    John R. Straehan, Law Office of John R. Strachan, Anchorage, and James D. Babb, Jr., Law Office of James D. Babb, Jr., Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Mark Rausch appeals the trial court’s decision that he validly delivered two quitclaim deeds to Michelle Devine and the court’s refusal to impose resulting or constructive trusts on the properties in his favor. Because Rausch failed to rebut a presumption of valid delivery by clear and convincing evidence, and because resulting or constructive trusts are inappropriate in cases of gratuitous transfers, we affirm the superior court’s decision.

II. FACTS AND PROCEEDINGS

A. Facts

Mark Rausch and Michelle Devine met in Iowa in 1988 and began a romantic relationship in 1989. They discussed marriage and in early 1990 went to Belize for a marriage ceremony that the parties agree was not legally effective, although afterwards they did on occasion hold themselves out as married. They lived on Rausch’s farm in Iowa from February to March 1990, and then moved to Rausch’s house in Anchorage. Their daughter Sydney was born in April 1991. They lived together until 2000. They used a fairly traditional living arrangement in which Devine cared for Sydney and the house, held some minor jobs, and took care of all household paperwork and bills. Rausch covered almost all of their living expenses by occasionally working as a lawyer and hunting guide, by recovering lost airplanes, by trading his labor, and by using $140,000 in cash savings that he kept hidden on his properties in Iowa and Alaska.

The parties agree that on May 7, 1990 Rausch drafted and signed an unconditional quitclaim deed in favor of Devine for his farm in South English, Iowa, and took it to a lawyer friend to have it acknowledged. The parties stipulate that Rausch was an attorney and was competent to draft the deed so as to include any terms he wished. They also agree that at the very least Rausch showed Devine the Iowa deed after she became pregnant with Sydney, and that Devine recorded the deed in May 1991 while visiting Iowa with Sydney after the birth. On January 13,1993 Rausch asked different lawyer friends to draft and acknowledge another quitclaim deed to Devine, this time for the Anchorage property, and this deed was recorded by Rausch’s friend in February 1993. Thereafter, Devine continued to act primarily as a homemaker and Rausch continued to pay for the mortgage and direct the upkeep on both properties. He also began the construction of a house on the Iowa property in 1997.

At some point in early 1993, Devine moved out of Rausch’s bedroom and their intimate relationship ceased, but in most practical respects their relationship stayed the same, apparently because Devine hoped the relationship would improve and Rausch wanted access to Sydney. On a few occasions the parties discussed the possibility that Rausch would buy back the deeds so that Devine could buy a different house in Anchorage, but this never materialized. The parties separated in early 2000 when Devine filed her complaint in the case below.

B. Proceedings

In February 2000 Devine filed suit in superior court in Anchorage asking for an order that Rausch vacate the house in Anchorage, an order distributing their property other than the Iowa and Anchorage lands, sole legal custody of Sydney, and child support. In June 2000, Rausch counterclaimed to quiet title to the Iowa and Anchorage lands, or in the alternative for the imposition of a resulting or constructive trust on the lands, breach of contract, and joint legal custody. Trial was bifurcated by Superior Court Judge Eric T. Sanders between property and child custody/support issues, and trial on the property issue was held on March 12-13 and April 4, 2001. At trial, Devine contended that Rausch had given her both properties and paid for their mortgages as a gift because he was generous and because he wanted to assuage her concerns that their unmarried status left her in a financially precarious position. Rausch contended that he had never intended to transfer title to the properties to Devine. Instead, he testified that he executed the deed to the Iowa property only intending for her to take title if he died and that he executed the deed to the Anchorage property only as reassurance that he would not evict her from the house until Sydney’s majority.

Judge Sanders ruled that the recording of the deeds created a presumption of valid delivery that was rebuttable by clear and convincing evidence. He noted that Rausch’s continued payments for the properties were persuasive evidence against delivery, but nonetheless ruled that the presumption had not been overcome because Rausch was not a credible witness, Rausch’s explanation for why he executed the quitclaim deeds did not correspond with what Rausch as a lawyer would understand the purpose of a quitclaim deed to be, Rausch’s financial habits were generally “unconventional,” and Rausch had taken no action for six years upon allegedly learning that Devine was the title holder to both properties. Judge Sanders rejected the resulting trust argument for two reasons: first, because the Restatement (Second) of Trusts section 440 states that resulting trusts are inferred when a payor furnishes a purchase price on behalf of a third party, which had not been the case here, and second, because comments to the Restatement section 441 also provide that no inference of a trust arises when a transfer appears to be intended as a gift. Judge Sanders also rejected the constructive trust theory, noting that a constructive trust is imposed only where the title holder has acquired the property through unjust, unconscionable, or unlawful means and would therefore be unjustly enriched by keeping it. He found that while the gift “undoubtedly” enriched De-vine, she had performed most of the services of a spouse during the ten years of their relationship and he implied that this did not constitute unjust, unconscionable, or unlawful behavior that unfairly tended to deprive Rausch of his property. Finally, Judge Sanders rejected Rausch’s express contract theory but awarded Rausch the house that he had built on the Iowa property. Rausch appeals.

III. STANDARD OF REVIEW

The choice of the proper standard of law for resolving property disputes is a question of law that we review de novo. The application of law to the facts of the case is reviewed de novo. We adopt the rule of law that is most persuasive in light of precedent, reason, and policy. The factual findings of the trial court are reviewed for clear error, a standard that is met if, after a thorough review of the record, we come to a definite and firm conviction that a mistake has been made. The trial court’s findings regarding the credibility of witnesses and weighing of the evidence may be reversed only if clearly erroneous. In reviewing the trial court’s factual findings, we view the evidence in the light most favorable to the party prevailing in the trial court. We may affirm the trial court’s result on any basis supported by the record.

IV. DISCUSSION

Rausch contends that both pieces of property should be returned to him in full under three theories; (1) that both deeds were invalid for lack of proper delivery, because he never gave Devine the deeds or intended that the quitclaim deeds should transfer title; (2) that a resulting trust should be imposed because the transactions give rise to the inference that Rausch did not intend to benefit Devine; and (3) that a constructive trust should be imposed because Devine will be unjustly enriched if she is allowed to retain properties for which Rausch paid. All of these theories depend on acceptance of Rausch’s version of the facts and rejection of Devine’s. Evaluation of the credibility of witnesses is a matter for the trial court, and upon review the prevailing party is entitled to have the record viewed in the light most favorable to her. Under these principles, we affirm the factual and legal rulings of the trial court.

A. Rausch Did Not Present Clear and Convincing Evidence Rebutting the Presumption that the Iowa and Alaska Deeds Were Validly Delivered.

The heart of Rausch’s case is the contention that the recorded deeds to the Iowa and Alaska properties were invalid because they were never properly delivered to Devine. We reject that contention.

1. Both Iowa and Alaska law require delivery of a validly executed deed, and in both states the presumption of valid delivery that arises upon recording can be rebutted by the party disputing delivery through clear and convincing evidence.

An action to invalidate a deed is an equitable one and can therefore be brought in any court with equity power, but the law of the situs of the property is applied to the validity of the deed itself. In this case there are deeds concerning land in Iowa and in Alaska, and the laws applicable to each are very similar.

In Iowa, a deed duly executed and acknowledged is self-proving as to its execution and delivery when produced by the grantee. “Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.” The proper transfer of title under a deed must include an actual or symbolic delivery of the deed accompanied by the intention of the grantor to transfer title without any reservation of control. “The intent of the grantor is controlling in the matter of delivery and is to be determined by the grantor’s acts or words or both.” A duly executed and recorded deed ordinarily raises a rebuttable presumption of delivery with present intent of passing title and possession, although the recording of the deed does not necessarily constitute delivery if the facts and circumstances indicate that the grantor’s intention was otherwise. The burden of proving the absence of delivery is on the party alleging the absence of delivery, and the evidence must be clear, satisfactory, and convincing. When a deed absolute on its face is delivered to the grantee with the intention that it become effective only upon the grantor’s death, the delivery is wholly ineffective, but if the grantor delivers the deed to a third-party agent without reserving the right to recall it, then title passes immediately to the grantee while reserving a life estate to the grantor. The grantor’s continued possession and control of the property strongly suggest the absence of delivery, especially where the grantee does not take possession in any way.

These principles of Iowa law are generally consonant with the American law of delivery of deeds, and Alaska case law has implied that delivery of a deed is part of its valid execution, relying on Powell on Real PROPERTY. Although there appears to be no Alaska case specifically holding that the recording of a deed gives rise to a presumption of valid delivery that is rebuttable by clear and convincing evidence, Chief Justice Rabi-nowitz has noted that this is hornbook law, and we have previously held that the “clear and convincing” standard is often applicable to factual questions surrounding land actions. We now adopt the rule that a recorded deed gives rise to a presumption of valid delivery that may be rebutted by the party challenging delivery by clear and convincing evidence.

2. Judge Sanders applied the proper standards of law, and his factual findings, viewed in the light most favorable to the prevailing party, are not clearly erroneous.

Rausch contends that in finding that he had not shown by clear and convincing evidence that he had not intended to transfer the deeds to Devine, the trial court clearly erred in its factual findings and credibility determination. Rausch also contends that the trial court made errors of law by relying on irrelevant facts and by failing to conclude expressly that Rausch intended to make a present transfer. We disagree.

Rausch’s strongest argument, both in case law and in supporting documentary evidence, is that the trial court should have inferred that Rausch did not intend to transfer title to the properties based on his actions as the owner of the properties, including providing the funds for the mortgage and taxes, taking care of the upkeep, dealing with renters on the Iowa property, and building a new house on the Iowa property. Rausch cites Crowder v. Crowder and Staats v. Staats for the proposition that subsequent ownership acts are strong evidence that there was no intent to transfer title, and Giefer v. Swenton for the proposition that the presumption of delivery is not as strong when the deed is not recorded by the grantor. But all of these cases are rich in factual detail supporting the lack of intent to transfer, whereas Rausch’s case, as will be discussed below, is not. Indeed, in Crowder the transferee testified that the purpose of the deed was to insulate the property from a possible tort settlement, not to transfer title as a gift. In Staats, the deed was recorded years after it was drafted, the surviving transferor testified that the deed had been drafted out of concern for the possible failure of a bank, the trial court found that the recording transferee’s contradicting testimony was not credible, and the transferee had never taken possession of the property except as a tenant. Likewise, in Giefer, the court found that there was a valid delivery even where the transferees had never taken possession of the property because the drafter of the deeds had testified that the transferor had deeded his property to his children during his life only in order to avoid the expense and trouble for his children of submitting the land and his will to probate at his death. On the contrary, in this case, the only testimony that Rausch did not intend a transfer came from Rausch himself, the trial court found that Rausch’s credibility was poor, and both parties had possession of the land consistent with their shared household and established pattern of dividing household duties. Although exercising the incidents of ownership does cast doubt on whether a party has in fact intended to transfer title in a deed, the credibility determinations and facts in this case do not provide clear and convincing evidence overcoming a presumption of delivery.

According to Rausch, the trial court’s conclusion that the presumption of delivery was not rebutted was based on factual findings, especially credibility determinations, that were clearly erroneous. He argues that the trial court should have given more weight to his testimony that he wanted Devine to take the Iowa property only if he died before their daughter turned eighteen, and that he deeded the Anchorage property to Devine merely as a gesture of goodwill after their relationship soured. But we agree with the superior court that Rausch’s stated intentions are belied by his decisions to draft unqualified quitclaim deeds. Rausch was a licensed attorney who had experience in marital property law. Drafting an unqualified Iowa deed with an expectation that the deed would become effective only upon Rausch’s death would have been an ineffective transfer whether he kept the deed in his own possession or transferred it to Devine, and therefore would not have reached the result Rausch claims he intended. Moreover, any conditions on the Alaska deed are oral and unproved, so that the Alaska transfer would also have been ineffective to reach the results Rausch claimed he intended. Not only would these deeds have been legally ineffective to reach the results that Rausch claims he intended, but they were also facially unrelated to those results. Devine argues, with some justice, that Rausch’s case amounts to the proposition that ten years after the fact only Rausch’s “secret,” unstated intentions regarding the property are relevant. Indeed, Rausch testified that he and Devine never discussed his intentions regarding the Anchorage property because “she knew why I did it.... I wanted to ameliorate [her] concern.”

We also agree with the superior court that Rausch did not present clear and convincing evidence to support his testimony that he did not intend to deliver the deeds; rather, his supporting evidence was contradictory and incomplete, especially when viewed in the light most favorable to Devine, the prevailing party. The trial court noted that while Rausch insisted repeatedly in his testimony that he would never give away his property, nevertheless he did not call any of the lawyer friends who authorized or recorded the deeds for him to corroborate his assertion that the deeds were not meant to transfer title. Moreover, Rausch did not bolster these assertions by explaining what steps he took, if any, to retain control over either of the deeds. Rather, regarding the Iowa deed, he says only that he “showed” the Iowa deed to Devine and that she later stole it from him, without explaining what he did with the deed after showing it to her, where he kept it, or how he excepted this particular piece of paper from his usual practice of depending on Devine to supervise all the paperwork relating to their household. Iowa case law provides that the grantor’s intent regarding delivery is to be deduced from the grantor’s “acts or words or both,” probably as a safeguard against the “secret intent” problem. In this case Rausch’s only relevant acts and words were those of ownership in paying the mortgage, etc., and as the trial court correctly noted, these acts are not inconsistent with the possibility that he intended that title to the land be transferred to Devine because she lacked the ability to buy her own land. Rausch’s subsequent acts of ownership do not clearly and convincingly show that Rausch drafted, signed, and asked a friend to notarize the unconditional Iowa quitclaim deed intending something other than a present transfer of title to Devine, someone with whom he expected to be living for a long time.

There is a similar lack of supporting evidence as to Rausch’s intentions regarding the Anchorage deed. Again, Rausch claims that he used his Iowa quitclaim deed as a model and took it to lawyers with whom he had practiced to have the deed acknowledged, but did not testify that he explicitly instructed them not to record the deed and to return it to his sole control. He testified instead that he could not remember whether he instructed his attorney to return the deed to himself or Devine, and apparently never looked for the return of the deed or thought about it again until 1994 when refinancing his mortgage. Yet Rausch claims to be surprised that the Anchorage deed was recorded, and his attorney suggested that his lawyer friends must have “mistakenly” recorded the deed on his behalf. These facts — that Rausch apparently placed no significance on his lack of control of the deed, that it was recorded by his own agent, and that he chose the form of the deed himself — all tend to raise the inference that Rausch in fact intended the deed to do exactly what it said it did: give title to the property to Devine.

Regarding credibility, in the absence of any testimony from Rausch explaining how he attempted to keep control of either deed, the trial court was left only with the nakedly conflicting testimony of the two parties, making the whole case turn to a substantial extent on the credibility determination. Credibility determinations are the function of the trial court, not this court. The trial court observed that while Rausch claims he never authorized the recording of either deed, Rausch waited until six years after he claims to have learned of the recording of the deeds to attempt to rectify Devine’s alleged theft of the Iowa deed from him and his own attorney’s purported mistake in recording the Alaska deed. The superior court also noted that Rausch’s testimony about his financial habits was not credible, that Rausch had deliberately misled others about his assets in the past in order to avoid what he saw as unfair child support obligations, and that Devine had provided a plausible narrative regarding why Rausch had given her the properties. Devine testified that Rausch had promised her the Anchorage house at the time they agreed to marry and that she had repeatedly asked him to formalize their union. In this connection, it is important to note that there were inferences from Rausch’s own testimony to support the trial court’s finding that Devine was credible: although typically couching the issue in terms of fear for his death in a hunting or flying accident, Rausch also acknowledged that he knew that Devine’s unmarried status and lack of resources made Devine feel financially and legally insecure, and that he drafted both deeds to meet her concerns. In addition, Rausch had a history of extravagant gifts, including land: he had given at least one piece of land to one of his children in the past, and he had given Devine a Rolex at the time of their putative marriage ceremony as well as a Mercedes earlier. The relevance of the credibility determinations is clear, and the credibility determination is a matter for the superior court.

Rausch also contends that the superior court made two errors of law. First, Rausch contends that the trial court’s credibility determinations were based in part on facts which were “not related” to the issue of delivery of the deeds and therefore were not relevant. Because Rausch’s primary evidence of his lack of intent to deliver the deeds was his own testimony about his intentions, the trial court had no choice but to discuss less relevant material in explaining its assessment of Rausch’s overall credibility, which it properly did. Yet the trial court substantiated its opinion regarding the delivery of the deeds entirely with facts relating directly to the delivery of the deeds. We hold that there was no error in the trial court’s application of the law to the facts.

Second, Rausch contends that the trial court committed legal error by failing to conclude expressly that Rausch intended a present transfer. However, under the rebut-table presumption of delivery raised by the recording of each of the deeds, delivery was already presumed. It was not the court’s duty to find that the deeds had been delivered; it was instead Rausch’s duty to present clear and convincing evidence that they had not been delivered. There was no error of law on this point. Upon a review of the record viewed in the light most favorable to the prevailing party, it cannot be said that the trial court obviously made a mistake in finding that Rausch had not submitted evidence of a quantity or quality that would rebut the presumption of a valid delivery of either deed under the “clear and convincing” standard.

B. Because the Transfer of the Properties Did Not Give Rise to an Inference that Rausch Did Not Intend Devine To Benefit, No Resulting Trust Was Required.

Rausch also contends that the trial court erred in refusing to impose a resulting trust on the properties. The existence and extent of equitable interests in land are governed by the law of the situs of the land. Iowa follows the Restatement (Second) of Trusts and defines a resulting trust as being imposed “ ‘for the purpose of carrying out what it appears from the circumstances under which a disposition of property is made would probably have been the intention of the person making the disposition.’ ” We have examined a resulting trust only once, in Sugg v. Morris, but did not define it there. However, the Restatement (Second) of Trusts has helped guide our definition of trusts in the past.

Rausch also relied upon the Restatement (Second) of Trusts in the trial court. The Restatement explains that a resulting trust arises where circumstances raise an inference that the payor does not intend that the grantee should have the beneficial interest in the property, the inference is not rebutted, and the beneficial interest is not disposed of. The Introductory Note to the chapter on resulting trusts explains that such an inference may arise in three situations: (1) where an express private or charitable trust fails in whole or in part; (2) where a private or charitable trust is fully performed but some of the trust estate has not yet been exhausted; or (3) “[w]here property is purchased and the purchase price is paid by one person and at his direction the vendor transfers the property to another person.” Section 405 of the Second Restatement provides that “[w]here the owner of property transfers it without declaring any trust, the transferee does not hold the property upon a resulting trust although the transfer is gratuitous.” Comment a to that section explains that “[w]here a transfer of property is made without consideration, the inference is that the transferor intends to make a gift to the transferee, not that he intends that the transferee should hold the property for the benefit of the transferor.” Section 440 explains that where a transfer is made to one person and the purchase price is paid by another, an inference of a resulting trust arises; but section 441 explains that the inference does not apply if the payor manifests an intent that no such trust should arise. Comment a to section 441 explains that this is the case where the payor shows an intent to make a gift, and comment b lists factors that may tend to show whether or not a gift was intended.

Rausch alleges various errors by the trial court. He first contends that the trial court misunderstands the creation of a resulting trust, because the trial court only cited portions of the Restatement in its opinion that state that a resulting trust may arise where the payor directs the vendor that title shall be taken by the transferee. Rausch argues that other situations exist in which an inference will arise that the payor did not intend to give the transferee the beneficial interest, for instance where conditions impose a fiduciary duty on the grantor or a third person. Rausch also argues that a resulting trust is appropriately imposed where this will bring into effect what the grantor would have chosen had he thought carefully about the matter. Rausch’s statements of law are valid and are mirrored in the relevant Iowa case law. However, the trial court’s emphasis on third-party transfers appears to reflect only the fact that the first two classic situations raising an inference of a resulting trust, where there is an attempt at an express trust or where the purposes of a trust have been fully performed, could not possibly have been applicable in this case. Moreover, the substantive basis for the trial court’s ruling was its factual finding that the transfers were gratuitous, as shown by the court’s citation to Restatement section 405. Comment a to section 405 states that gratuitous transfers of previously-held property are subject to the inference that a gift was intended, not the inference that the payor himself expected to benefit from the conveyance (which is defined as a resulting trust by Restatement section 404). Therefore, the trial court was correct in ruling that the circumstances at hand gave rise to an inference of a gift, not a resulting trust. There was no error of law on this point.

Next, Rausch alleges that the trial court erred in stating that “no resulting trust would arise unless Mark could prove by clear and convincing evidence that he did not intend to gift the properties to Michelle.” Rausch claims that it was error to presume a gift and error to require the gift to be rebutted through clear and convincing evidence. He claims instead that circumstances raise an inference that he did not intend for De-vine to have the beneficial interest in the property. But the inference of a gift arises as a matter of law according to Restatement section 405 and as a matter of fact flowing from the trial court’s credibility determination.

Finally, Rausch attacks the trial court’s factual findings supporting the inference of a gift, which were patterned on Restatement section 441 comment b, on the ground that Rausch continued to make mortgage payments on the properties long after the original gift. The equity owned by Rausch in each property at the time the deeds were executed is already presumed to be a gift according to section 405, which refers to property already held by the benefactor. Therefore, the only remaining issue is whether the subsequent mortgage payments are subject to Restatement sections 440 and 441. Section 440 provides that a resulting trust arises where one party pays a purchase price but the land is transferred to another. Section 441 provides that “[a] resulting trust does not arise where a transfer of property is made to one person and the purchase price is paid by another, if the person by whom the purchase price is paid manifests an intention that no resulting trust should arise.” We do not consider each mortgage payment to constitute an individual transfer of property to Devine; rather, each mortgage payment simply expresses Rausch’s completion of his contractual obligations under the mortgage. Therefore we doubt that there is any transfer of property here in the sense that would create a resulting trust under Restatement section 440 at all. We affirm on the ground that section 405 applied to both the initial transfer and the later mortgage payments.

C. Because Devine Was Not Unjustly Enriched by the Transfer of the Properties, No Constructive Trust Was Required.

Rausch contends that the trial court erred in refusing to impose a constructive trust on the properties. The existence and extent of equitable interests in land are governed by the law of the situs of the land. Iowa follows the definition of the Restatement (Second) of Trusts, which states that a constructive trust expresses a right to restitution based on unjust enrichment. The Restatement of Restitution states that “one who makes a gift or voluntarily pays money which he knows he does not owe confers a benefit; in neither case is he entitled to restitution.” In the absence of a document evidencing the intention to create a trust, Iowa will impose a constructive trust only where (1) there is fraud, duress, or undue influence; (2) the transferee and transferor were in a confidential relationship; or (3) the transfer was made by the transferor in anticipation of death. Likewise, in Alaska a constructive trust is appropriate to prevent unjust enrichment, defined as the retention of property through “unjust, unconscionable, or unlawful means.”

The trial court responded to the constructive trust cause of action by pointing out that during Rausch and Devine’s ten-year relationship, Rausch had benefitted greatly from Devine’s services, and concluding that her retention of both properties could not be characterized as unjust or unconscionable. Rausch attacks the trial court’s characterization of the facts as unsupported by detailed evidence, and argues that there is no legal support for the contention that Rausch deserved to be compensated for her domestic services. Devine argues that the transfer was a gift and was fair. As to the Iowa deed, although Rausch did allege that Devine essentially stole the deed in order to record it, which could be a basis for a finding of fraudulent unjust enrichment, the trial court did not give credence to this allegation, and there is no other applicable basis in Iowa law on which to impose a constructive trust. Regarding the Anchorage deed, Rausch does not allege that Devine obtained the title to that property through any “unjust, unconscionable, or unlawful means.” Rather, the argument is only that it is unfair that Devine should hold title to something that Rausch paid for. Whatever the merits of that argument, that Devine holds title to property that Rausch paid for does not constitute unjust enrichment. We interpret the trial court’s reasoning on this issue as a rejection of the implication that receiving property for acting as a stay-at-home parent is unjust, unconscionable, or unlawful, and affirm its ruling denying a constructive trust.

Y. CONCLUSION

Because Rausch failed to rebut the presumption of delivery of the deeds by clear and convincing evidence, because gratuitous transfers do not raise an inference of intent to benefit someone other than the transferee such that a resulting trust is appropriate, and because a freely gratuitous transfer is not unjust enrichment justifying the imposition of a constructive trust, we AFFIRM the superior court in all respects.

      . Restatement (Second) of Trusts § 440(1959).

      . State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712 (Alaska 1999); McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1335 (Alaska 1984) (quoting George Gleason Bogert & George Taylor Bogert, Trusts and Trustees § 471, at 3 (rev.2d ed.1978)).

      . DM. V. D.A., 885 P.2d 94, 96 n. 3 (Alaska 1994).

      . Wood v. Collins, 812 P.2d 951, 955 n. 4 (Alaska 1991).

      . Id. at 956 n. 5; Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Klosterman v. Hickel Inv. Co., 821 P.2d 118, 121-22 (Alaska 1991).

      . Parker v. N. Mixing Co., 756 P.2d 881, 892 n. 25 (Alaska 1988); Alaska R. Civ. P. 52(a).

      . Klosterman, 821 P.2d at 122.

      . In re A.B., 791 P.2d 615, 621 n. 9 (Alaska 1990).

      . At oral argument, Rausch also suggested that the trial court should simply have divided the properties in accordance with the intention of the parties under Tolan v. Kimball, 33 P.3d 1152, 1154 (Alaska 2001); D.M. v. D.A., 885 P.2d 94, 97 (Alaska 1994); and Wood v. Collins, 812 P.2d 951, 956-57 (Alaska 1991). While these cases do govern property division between unmarried domestic partners, we can find no reference to them in any trial argument or in Rausch’s appellate briefing. Accordingly, we hold that this argument has been waived. D.H. Blattner & Sons, Inc., v. N.M. Rothschild & Sons, Ltd., 55 P.3d 37, 54 n. 69 (Alaska 2002) (issues not raised in trial court are waived on appeal except where plain error has occurred); Bishop v. Clark, 54 P.3d 804, 815 n. 32 (Alaska 2002) (issues not adequately briefed on appeal are waived).

      .While Devine devotes considerable attention to the issue whether reformation was available, Rausch does not raise the claim that the deeds should have been reformed. Instead, he has steadfastly maintained that "the court in this case was not called upon to interpret a document. The court was required to determine whether the grantor intended the document to be effective. The meaning of the document itself, if it were delivered, was never in dispute." Accordingly, it is not necessary for us to consider reformation.

      . George Chamberlin, Cause of Action to Invalidate Deed for Failure of Delivery, 5 Shepard’s Causes of Action (Second) 471, 539 (1994).

      . Estate of Lamport v. Estate of Lampert, 896 P.2d 214, 220 (Alaska 1995); Restatement (Second) of Conflict of Laws § 223 (1971); Robert A. Leflar, American Conflicts Law § 169 (3d ed.1977).

      . Heavner v. Kading, 209 Iowa 1275, 228 N.W. 313 (Iowa 1929).

      . Iowa Code Ann. § 557.3 (West, WESTLAW through 2002 2d. Ex.Sess.).

      . Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002); Klosterboer v. Engelkes, 255 Iowa 1076, 125 N.W.2d 115, 117 (1963).

      . Orud, 652 N.W.2d at 451; Klosterboer, 125 N.W.2d at 117.

      . Orud, 652 N.W.2d at 451; Avery v. Lillie, 260 Iowa 10, 148 N.W.2d 474, 477 (Iowa 1967).

      . Avery, 148 N.W.2d at 477; Klosterboer, 125 N.W.2d at 117.

      . Avery, 148 N.W.2d at 477-78.

      . W. at 478.

      . See Richard R. Powell et al., Powell on Real Property § 81A.04[2] (Matthew Bender Real Property Law CD-ROM, rel. 101, Dec. 2002); 23 Am.Jur 2d Deeds §§ 102-48 (2002).

      . Bennis v. Alexander, 574 P.2d 450, 451-52 (Alaska 1978).

      . In a dissenting opinion in Lown v. Nichols Plumbing & Heating, Inc., 634 P.2d 554, 557 & n. 2 (Alaska 1981) (citing 6A Richard Powell, The Law of Real Property ¶ 891, at 81-95 (Rohan rev. ed.1980)), Chief Justice Rabinowitz assumed that delivery law applied and noted that this court had done so in Bennis, 574 P.2d 450. This assumption did not conflict with the rationale of the majority opinion in Lown.

      . See Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 775 (Alaska 1995) (statutory nuisance abatement case, citing D.M. v. D.A., 885 P.2d 94 (Alaska 1994) (reformation of deed) and Miscovich v. Tryck, 875 P.2d 1293 (Alaska 1994) (abandonment of mining claim)). But see Fernandes v. Portwine, 56 P.3d 1, 5 (Alaska 2002) (clear and convincing standard does not apply to general tort nuisance).

      . 303 Ark. 562, 798 S.W.2d 425, 427 (1990).

      . 148 Kan. 808, 84 P.2d 842, 843 (1938).

      . 23 Kan.App.2d 172, 928 P.2d 906, 909 (1997).

      . Crowder, 798 S.W.2d at 426-28.

      . Staats, 84 P.2d at 842-44.

      . Giefer, 928 P.2d at 908-10.

      . In his reply brief, Rausch argues for the first time that no presumption of delivery should have arisen at all because the recording was not performed by the grantor. Issues raised for the first time in the reply brief are deemed waived. Childs v. Tulin, 799 P.2d 1338, 1340 n. 5 (Alaska 1990). However, we also note that Rausch’s argument is incorrect: Neither the Iowa cases nor the treatises make an absolute distinction between recording by the grantor and the grantee. See, e.g., Orud v. Groth, 652 N.W.2d 447, 451 (Iowa 2002) ("A duly executed and recorded deed ordinarily raises a rebuttable presumption of delivery with the present intent of passing immediate title and the right of possession.”); Powell, supra note 2 at § 81A.04[2][a][iv] ("Upon a demonstration that the deed has been recorded by the grantor or grantee, or by their agents, a rebuttable presumption of delivery arises.” (emphasis added)); AmJur 2d Deeds, supra note 22 at § 141 ("The recording of a regularly executed and acknowledged deed by either the grantor or the grantee raises a rebuttable presumption of delivery .... ” (emphasis added) (footnotes omitted)).

      . If Rausch retained the Iowa deed intending for it to become effective only at his death, and never surrendered the deed to Devine, as Rausch alleges, then it was ineffective as a transfer for lack of delivery under Iowa law. Klosterboer v. Engelkes, 255 Iowa 1076, 125 N.W.2d 115, 117 (Iowa 1963). If Rausch had indeed surrendered the Iowa deed to Devine but still intended for it to become effective only upon his death, then the deed again would have been ineffective for lack of delivery. Avery v. Lillie, 260 Iowa 10, 148 N.W.2d 474, 477 (Iowa 1967). Rausch could have achieved his allegedly desired result by, inter alia, drafting a will, by depositing the quitclaim deed to a third party without reserving the right to recall it, by reserving a life estate for himself in the deed, or by transferring the property to himself and Devine as joint tenants with right of survivorship.

      . Under Bennis v. Alexander, 574 P.2d 450, 452 (Alaska 1978), unproved oral conditions on a deed are ineffective, and the resulting property transfer is both effective and unencumbered. Rausch could have achieved his allegedly desired result of guaranteeing Devine housing until Sydney's majority by, inter alia, granting Devine a lease with a term of years.

      . Orud, 652 N.W.2d at 451.

      . Alaska R. Civ. P. 52(a); Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988).

      . Restatement (Second) of Conflict of Laws § 235 (1971); Leflar, supra note 13 at § 172.

      . Orud, 652 N.W.2d at 452 (quoting Restatement (Second) of Trusts § 404, Introductory Note, at 324 (1959)).

      . 392 P.2d 313, 316 (Alaska 1964).

      . Alaska Stats Employees Ass’n v. Alaska Public Employees Ass’n, 825 P.2d 451, 459 (Alaska 1991) (defining trusts generally); McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1335 (Alaska 1984) (defining constructive trust).

      . Restatement (Second) of Trusts § 404, Introductory Note, at 322-23.

      . Id. at 323.

      . These factors include: (1) declarations made by the payor at any time regarding the transfer; (2) the relationship between the payor and transferee; (3) whether the transferee is an individual, corporation, or charitable corporation; (4) the relative financial positions of the payor and transferee; (5) whether a gift by the payor to the transferee would be improvident; (6) the presence or absence of any reason for taking title in the name of the transferee other than to provide the beneficial interest. Restatement (Second) of Trusts § 441 cmt. b.

      . Restatement (Second) of Trusts § 404, Introductory Note, at 324.

      . Orud v. Groth, 652 N.W.2d 447, 452 (Iowa 2002) (inference of resulting trust raised through letter from grantor drafted concurrently with conveyance explaining that any proceeds from sale of property by transferee should be distributed among all of transferee’s children).

      . Restatement (Second) of Conflict of Laws § 235 (1971); Leflar, supra note 13 at § 172.

      . Orud, 652 N.W.2d at 452 n. 2 (citing Restatement (Second) of Trusts § 404, Introductory Note, at 326); Restatement of Restitution § 160 cmt. b (1937).

      . Restatement of Restitution § 1 cmt. c.

      . Orud, 652 N.W.2d at 452.

      . State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712 (Alaska 1999) (quoting McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1335 (Alaska 1984) (quoting G. Bogert, supra note 2, at 3)).

      . Raymer, 977 P.2d at 712 (quoting McKnight, 678 P.2d at 1335 (quoting G. Bogert, supra note 2, at 3)).

      . Restatement of Restitution § 1 cmt. c.


author: BRYNER, Justice.

text:
    John WILLIAMS, Appellant, v. Roger and Carmen ENGEN, Appellees.
    No. S-10475.
    Supreme Court of Alaska.
    Dec. 5, 2003.
    James W. McGowan, Sitka, for Appellant.
    Steven Lewis Hempel, Juneau, for Appel-lees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Alaska Civil Rule 27 gives a court limited powers to order production of evidence for a legal action that has not yet been filed. The rule has usually been read to allow early production only to preserve existing evidence — not to discover whether evidence exists. John Williams believed that he might have a claim for misrepresentation arising from a real estate transaction and wanted evidence to confirm his suspicions and identify the prospective defendant. Relying on Rule 27, Williams asked for an order compelling a mortgage company to produce a report, not otherwise available to him, containing the information he needed. The superior court declined to order production, applying the conventional meaning of Rule 27. Williams appeals, urging us to read the rule as allowing discovery of facts needed to frame a complaint. We find no exceptional circumstances in this case that would justify expanding the rule’s usual limits, and thus affirm the superior court’s decision.

II. FACTS AND PROCEEDINGS

Roger and Carmen Engen bought a home from the Estate of Vera Lowe. John Williams, a real estate agent associated with Re/Max of Juneau, represented the estate in the sale. As part of the transaction, the estate agreed to finance part of the Engens’ purchase with a nine-month, $180,000, interest-free note.

Soon after the Engens signed the agreement, they discovered a crack in the home’s foundation. They hired an engineer, John Cooper, who estimated that repairs would cost $125,000 to $200,000. Believing that this cost would prevent them from refinancing to pay off their $180,000 note, the Engens notified their attorney, who prepared a draft complaint alleging misrepresentation and failure to disclose required information. The draft complaint named as defendants the estate, Williams, and two partners of Williams at Re/Max of Juneau. After the defendants reviewed the Engens’ proposed complaint, all parties agreed to mediate the dispute.

At the mediation, Williams and Re/Max made a combined offer to settle their share of liability for $25,000. Williams was to pay $10,937.50 of this amount. With this proposal on the table as their final settlement offer, Williams and Re/Max left the mediation proceeding, saying that they did not care how the Engens and the estate resolved their dispute. The estate and the Engens proceeded to settle, agreeing that the original sale would simply be rescinded, while the Engens would remain free to accept the $25,000 offer from Williams and Re/Max. The mediator recorded this oral agreement and adjourned proceedings until a date could be set for all the parties to convene and sign the final, written version.

Almost immediately after reaching this agreement, the Engens began having second thoughts about giving up the home, so they resolved to check for available refinancing. The estate evidently did not object to this change of heart. Williams soon heard that the Engens had applied for refinancing from Residential Mortgage. He contacted the company, and one of its employees confirmed that the Engens had applied for refinancing, supporting their application with a letter from their engineer, Cooper. The employee also said that Residential could not show him Cooper’s letter until the refinancing closed. Williams then learned from his own attorney that Residential had agreed to refinance the Engens’ home because Cooper’s letter assured the company that the building was not in imminent danger and could be repaired after the refinancing agreement closed.

Nevertheless, two days after hearing this information, Williams met with the other parties and signed a final settlement agreement; the agreement changed the original settlement terms between the estate and Engens by leaving the home sale intact, but it expressly incorporated the $25,000 payment that Williams and Re/Max had offered at the mediation.

After waiting until the Engens completed their refinancing arrangements, Williams asked Residential Mortgage again for a copy of Cooper’s letter. Residential again denied his request, stating that the Engens had instructed the company not to release the letter. But a member of Residential Financing’s staff evidently advised Williams that the company would not have approved the refinancing unless the foundation had already been repaired. Williams contacted the En-gens directly and asked for a copy of Cooper’s letter, but they refused to disclose it.

Williams then petitioned the superior court under Alaska Civil Rule 27, seeking to compel Residential Mortgage to produce Cooper’s letter. He alleged that he was “unable to pursue a suit to secure relief for the monies paid to the Engens, because I do not know who to sue, the Engens, [the] engineer [ ], or some other person or entity.” Williams further alleged that “[pjerpetuation of the testimony will avoid a delay or failure of justice which would result if I cannot determine against whom I have a cause of action.”

The Engens opposed the petition, contending that Williams’s petition fell outside the scope of Rule 27 because it sought discovery to determine if evidence existed to support a cause of action rather than seeking to preserve known evidence of an already existing cause of action. Following a hearing, Superior Court Judge Larry C. Zervos denied Williams’s petition, ruling that our decision in McNett v. Alyeska Pipeline Service Co. supported the Engens’ position and barred Williams from using Rule 27 to collect evidence for a future claim.

Williams appeals.

III. DISCUSSION

Alaska Civil Rule 27(a) allows a prospective litigant “who desires to perpetuate testimony” to petition the court for permission to take a deposition, inspect a document, or conduct a medical examination before commencing an action. Paragraph 27(a)(1) of the rule requires the petition to show:

(1) that the petitioner expects to be a party to an action in a court of the state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and petitioner’s interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring [to] perpetuate it, (4) the names or description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each.... [ ]

Paragraph 27(a)(3) allows the court to order the deposition, medical examination, or document production “if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice.”

In McNett v. Alyeska Pipeline Service Co., we noted that Alaska’s Civil Rule 27 derives from Federal Rule of Civil Procedure 27; we thus observed that cases interpreting the federal rule provide a “useful general framework of the purpose of [Alaska Civil] Rule 27.” Rule 27’s literal terms describe a method for a litigant with an existing claim, or facing an existing claim, “to perpetuate” evidence before the claim is filed. In keeping with the rule’s literal purpose, federal courts generally bar would-be litigants from using Rule 27 as a tool to discover new information. Courts and commentators alike agree that the rule does not authorize searches for causes of action, and McNett spoke approvingly of these authorities:

Federal cases have noted that Rule 27(a) “ ‘is not a method of discovery to determine whether a cause of action exists; and, if so, against whom action should be instituted.’ ” Instead, the Rule applies [“]to situations where, for one reason or another, testimony might be lost to a prospective litigant unless taken immediately.... Such testimony would thereby be perpetuated or kept in existence and, if necessary, would be available for use at some subsequent time.[”] Both federal and state courts have read Rule 27(a) to restrict depositions that are merely searches for a cause of action, rather than an effort to preserve testimony concerning facts already known to the potential litigant.[]

Here, Williams does not dispute that the superior court correctly applied the rule’s mainstream interpretation. But relying on Rule 27(a)(3)’s language allowing court-ordered production to “prevent a failure or delay of justice,” Williams asks us to broaden the rule’s conventional reach. He proposes “a fairly modest liberalization” that would “allow Mr. Williams — or a similarly situated party — to avail himself of Rule 27 if he can convince a trial court that an impediment to his bringing a viable cause of action can reasonably be expected to be removed through ... a Rule 27 proceeding.” In such eases, Williams reasons, early discovery should be granted because it will “prevent a failure or delay of justice.”

But this argument mistakenly reads Rule 27’s “failure or delay of justice” phrase out of context. The phrase appears within a sentence that deals with perpetuating evidence: as indicated above, Rule 27(a)(3) allows court-ordered production only “if the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice.” This singular focus on perpetuating evidence strongly suggests that courts should generally refrain from applying the rule unless the petitioner demonstrates a need to prevent a failure or delay of justice specifically arising from a risk of losing evidence. In other words, “ ‘The reasons for perpetuating the proposed testimony must demonstrate danger of losing the evidence by delay.’ ”

Here, the superior court expressly found that Williams had failed to show any danger that Cooper’s letter might be lost. The superior court’s finding is not clearly erroneous. Indeed, Williams does not seriously question the finding. Instead, he asks us to hold that Alaska courts may consider factors other than danger of destruction or loss in deciding whether a petitioner has proved a sufficient need to perpetuate evidence. Williams points out, for example, that the Advisory Committee for the Federal Rules of Civil Procedure approvingly cited Hall v. Stout, an opinion declaring that “lapse of time [is] a risk affecting all evidence, irrespective of any particular condition of a witness.” But Hall’s broad dictum addresses testimonial evidence and translates poorly when directed at documentary evidence, because the passage of time alone generally poses little risk that evidence like Cooper’s letter will be lost or destroyed. And as the superior court properly found here, Williams presented nothing to establish a case-specific risk of destruction or loss.

Williams cites several Rule 27 cases in which federal trial courts have considered factors other than risk of destruction, such as the uniqueness of the information at issue and whether it lies in the adverse party’s exclusive control. But the cases cited by Williams generally consider factors like these to help measure the actual need for perpetuation of evidence when a case-specific danger of loss or destruction is shown. The cases do not suggest that these factors displace the need to establish some actual risk. All but one of the cited cases involved circumstances in which a danger of loss or destruction was apparent; and in sharp contrast to Williams’s situation, in all but one of the cited cases, the impediment preventing immediate commencement of an action was external to the petitioner’s need for the evidence. Notably, the sole exception cited by Williams, In re Alpha Industries, has been roundly criticized and consistently rejected by other courts.

Williams nonetheless points out that Rule 27 was drafted under the assumption that notice pleading would govern court proceedings; he questions the accuracy of this assumption, contending that today’s courts have largely abandoned notice pleading and now require a high level of specificity. According to Williams, this trend in modern pleading practices makes limited pre-filing discovery necessary to prevent a failure or delay of justice. Specifically, Williams complains, unless he obtains Cooper’s letter he will not be able to comply with Civil Rule 9(b), which requires complaints to plead the circumstances constituting a fraud with particularity, and he also will be unable to comply with Civil Rule 11, which requires an attorney filing a claim to certify, after conducting a diligent inquiry, “that the complaint is well grounded in fact and is warranted by existing law.”

But these arguments are unpersuasive. Civil Rule 9(b) calls for specificity, not certainty. The rule simply requires a claim of fraud to specify the time and place where the fraud occurred; it seeks to prevent conclu-sory pleading by requiring a complaint to do more than “recit[e] without specificity that fraud existed,” but it does not prevent plaintiffs from filing complaints based on available information and belief. Furthermore, while some courts have mentioned Civil Rule 11 in ruling on motions to perpetuate evidence under Rule 27, they have deemed the rule relevant only in circumstances suggesting that existing evidence might be lost or destroyed before the petitioner can complete a diligent inquiry for other evidence needed to frame a complaint. Williams cites no authority or holding persuasively suggesting that Rule 27 can be used as he proposes to use it — as a substitute for diligent inquiry or as a tool to be used when diligent inquiry yields inadequate evidence.

Williams also urges us to find his case exceptional because it “falls squarely into the pattern” described by the Ninth Circuit in Martin.' But Martin itself is an unexceptional case — except in a narrow sense that has no relevance here. The court in Martin allowed pre-filing disclosure of evidence unavailable to a potential defendant who lacked control over the timing of the plaintiffs claim but established that the plaintiff appeared to be destroying the evidence. Martin thus applies uniquely to defendants who lack control over filing and face destruction of evidence by their opponents. The case has no bearing on the present case, where Williams is the potential plaintiff and has failed to demonstrate any appreciable risk of destruction or loss.

In summary, then, assuming that Rule 27(a) might vest trial courts with discretion in exceptional cases to go beyond the rule’s traditional goal of preserving known evidence, we find here that Williams failed to establish any convincing reason to treat his case as exceptional. We thus conclude that the superior court properly denied his petition.

IV. CONCLUSION

We AFFIRM the superior court’s order denying Williams’s Rule 27 petition.

      . For simplicity, we will refer to Williams’s partners and Re/Max of Juneau collectively as Re/ Max.

      . Alternatively, the Engens argued that Williams waived his right to pursue a future cause of action by signing the settlement agreement, which expressly released the Engens from liability for any matters arising from the dispute over their purchase agreement. The superior court did not decide this issue.

      . 856 P.2d 1165 (Alaska 1993).

      . Alaska R. Civ. P. 27(a)(1).

      . Alaska R. Civ. P. 27(a)(1).

      . Alaska R. Civ. P. 27(a)(3). See also Martin v. Reynolds Metals Corp., 297 F.2d 49, 55-56 (9th Cir.1961) ("a party may, in a proper case, proceed under Rule 27 for an order under Rule 34 without taking a deposition at all").

      . 856 P.2d 1165 (Alaska 1993).

      . Id. at 1168.

      . See, e.g., Nevada v. O’Leary, 63 F.3d 932, 936 (9th Cir.1995); Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1376 (D.C.Cir.1995) (because Rule 27 is not a substitute for discovery, petitioner "must set forth in some detail the substance of the testimony it needs to preserve”); Ash v. Cort, 512 F.2d 909, 912 (3d Cir.1975) ("Rule 27 is not a substitute for discovery.”). Cf. Martin, 297 F.2d at 55 (putative defendant who makes showing that prospective plaintiff is destroying evidence may conduct limited discovery under Rule 27); In re Town of Amenia, 200 F.R.D. 200, 203 (S.D.N.Y.2001) (prospective parties to cost-recovery suit under Comprehensive Environmental Response, Compensation, and Liability Act may discover information in the course of perpetuating testimony in danger of loss); In re Delta Quarries & Disposal, Inc., 139 F.R.D. 68, 69 (M.D.Pa.1991) (same). But see In re Alpha Indus., 159 F.R.D. 456, 456-57 (S.D.N.Y.1995) (allowing pre-filing discovery to "prevent failure or delay of justice” where Rule 11 would otherwise prevent company from determining whom to name as defendant).

        .See, e.g., Ash, 512 F.2d at 909; 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2071 (2d ed.1994) ("the courts have generally agreed that to allow Rule 27 to be used for [discovery of facts needed to frame a complaint] would be an 'abuse of the rule’ ”) (quoting Martin, 297 F.2d at 55); 6 James Wm. Moore et al, Moore’s Federal Practice § 27.03 (3d ed. 1999) ("Rule 27 may not be used to search for possible claims, or to search for possible defendants. Nor should it be used to gather facts for use in framing a complaint.”); see also Sandmann v. Petron, 404 N.W.2d 800, 802 (Minn.1987) (plaintiff may not use Rule 27 to discover facts on which to base expert opinion required for complaint under medical malpractice statute); Harmon v. Mercy Hosp., 460 N.W.2d 404, 407 (N.D. 1990) (party seeking pre-filing discovery of facts needed to frame complaint "misperceived the purpose of Rule 27”).

      . McNett, 856 P.2d at 1168 (internal citations omitted).

      . McNett did not squarely address this issue. While noting that the meaning of the rule’s "failure or delay of justice” language had been raised before the trial court to support "a need for court flexibility,” we expressly observed that this ground had not been briefed on appeal. Id. at 1167 n. 1. And in deciding McNett's claim, we simply concluded that, on the record before it, the superior court could reasonably conclude that McNett's petition had failed to show that relief was necessary to prevent a failure or delay of justice. Id. at 1169.

      . Alaska R. Civ. P. 27(a)(3) (emphasis added).

      . In re Ford, 170 F.R.D. 504, 508 (M.D.Ala.1997) (quoting 4 James Wm. Moore et al„ Moore's Federal Practice § 27 (3d ed.1999)).

      . Hall v. Stout, 4 Del.Ch. 269, 1871 WL 2089, *3 (Del.Ch.1871); see also Mosseller v. United States, 158 F.2d 380, 382 (2d Cir.1946) (district court could have allowed deposition without showing of deponent’s ill health) (citing Hall, 4 Del.Ch. at 274). But see Penn Mut. Life Ins. Co., 68 F.3d at 1373-74 (general allegation that passage of time might impair prospective deponent’s ability to recall events not sufficient showing of danger to evidence); Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 976 (11th Cir.1985) (general allegation that prospective witnesses were "not immune from the uncertainties of life and death” not enough to show danger of losing evidence); Ash, 512 F.2d at 913 (conclusory statement of proposed deponents’ advanced ages does not satisfy rule’s requirement to show need to perpetuate testimony).

      . See In re Bay County Middlegrounds Landfill Site, 171 F.3d 1044, 1047 (6th Cir.1999); Penn Mut. Life Ins. Co., 68 F.3d at 1375; Tennison v. Henry, 203 F.R.D. 435, 441 (N.D.Cal.2001).

      . See Reints v. Sheppard, 90 F.R.D. 346, 347 (M.D.Pa.1981).

      . See In re Bay County, 171 F.3d at 1046 (only issues on appeal are whether petitioner adequately showed facts it sought to establish or substance of testimony it sought to elicit); Penn Mut. Life Ins. Co., 68 F.3d at 1375 (district court should have considered witness’s advanced age in deciding whether evidence was in danger of being lost); Tennison, 203 F.R.D. at 442-43 (age of witnesses and long passage of time demonstrate risk of loss of evidence); In re Town of Amenia, 200 F.R.D. at 202 (petitioner made showing of witness’s age and ill health); In re Delta Quarries, 139 F.R.D. at 70 (petitioner made showing of witness’s serious illness).

      . See In re Bay County, 171 F.3d at 1047 (potential defendant to CERCLA lawsuit sought to preserve testimony about other potentially responsible party); Penn Mut. Life Ins. Co., 68 F.3d at 1374 (petitioners could not yet bring suit because they had not exhausted their administrative remedies); In re Town of Amenia, 200 F.R.D. at 203 (potential CERCLA defendant sought to preserve testimony); In re Delta Quarries, 139 F.R.D. at 69 (same).

      . 159 F.R.D. at 456.

      . See, e.g., In re Ford, 170 F.R.D. at 508-09; In re Sitter, 167 F.R.D. 80, 82 (D.Minn.1996). Moreover, in contrast to Williams’s situation, In re Alpha arguably did involve exceptionally compelling circumstances for early discovery. Although no imminent loss of evidence was shown in the case, a valid claim for economic harm unquestionably existed; the petitioner simply lacked information to identify the responsible party, and, in the absence of pre-filing discovery, it appeared that this inability to identify the correct defendant would expose the petitioner to significant, ongoing economic damages. See In re Alpha, 159 F.R.D. at 457.

      . Alaska Civil Rule 9(b) provides;
      In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

      . Alaska Civil Rule 11 provides, in relevant part:

        The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless expense in the cost of litigation.
      (Emphasis added.)

      . Law Offices of Vincent Vitale, P.C. v. Tabbytite, 942 P.2d 1141, 1147 (Alaska 1997).

      . Id.

      . See, e.g., In re Town of Amenia, 200 F.R.D. at 203 (allowing pre-filing discovery upon showing of proposed deponent's age and poor health); In re Delta Quarries & Disposal, Inc., 139 F.R.D. at 69 (allowing pre-filing discovery upon showing of ailing health of proposed deponent whose testimony might be lost while prospective plaintiff conducted a separate essential inquiry).

      . Williams relies primarily on In re Alpha Industries, 159 F.R.D. at 456. As already noted, Alpha has been persuasively rejected by other courts. Moreover, unlike Williams, the claimant in Alpha had unquestionably established the existence of a valid claim and was stymied only in attempting to identify the potential defendant.

      . 297 F.2d at 49.

      . O’Leary, 63 F.3d at 936.

      . See O’Leary, 63 F.3d at 936 (noting a significant "distinction between Rule 27's invocation by a prospective defendant, as in Martin, and a prospective plaintiff or other applicant for judicial relief, as in this case,” and quoting Martin's comment that it would be an "[a]buse of the rule” for potential plaintiffs to use Rule 27 "as a means of discovery to enable them to draw a complaint”).

      . Our disposition of the case makes it unnecessary to address the Engens’ alternative argument that Williams waived his right to sue by signing the settlement agreement.