author: BRYNER, Justice. FABE, Chief Justice,

text:
    John REEVES, Appellant/Cross-Appellee, v. ALYESKA PIPELINE SERVICE CO., Appellee/Cross-Appellant.
    Nos. S-9168, S-9267.
    Supreme Court of Alaska.
    July 19, 2002.

      Thomas V. Van Flein, Marcus R. Clapp, Clapp, Peterson & Stowers, LLC, Anchor age, and David H. Call, Fairbanks, for Appellant/Cross-Appellee.
    David A. Devine, Groh Eggers, LLC, Anchorage, for Appellee/Cross-Appellant.
    Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

John Reeves developed an idea to build a visitor center at a turnout overlooking the Trans-Alaska Pipeline near Fairbanks. He described his idea to Alyeska's Fairbanks manager, Keith Burke, in return for Burke's promise not to use the idea without allowing Reeves to participate in its implementation. Yet Alyeska subsequently ceased dealing with Reeves and proceeded to build the visitor center on its own. Reeves sued Alyeska, and a jury awarded him damages under various alternative contract and tort theories. The questions presented here center on the validity of the special verdict finding Alyeska liable for breaching its disclosure agreement with Reeves and on the measure of damages for that breach. We hold that the special verdict correctly established Alyeska's ability for breach. We also hold that the special verdict on Reeves's implied contract claim correctly determined the issue of damages. But because the superior court awarded damages on a different claim addressed in the special verdict, we remand for entry of a modified judgment.

II. FACTS AND PROCEEDINGS

We described the salient historical facts in Reeves v. Alyeska Pipeline Service Co. (Reeves I) :

In 1985 Alyeska created a visitor turnout at Mile 9 of the Steese Highway between Fox and Fairbanks. The turnout had informational signs and provided visitors a view of the Trans-Alaska Pipeline. Before Alyeska constructed the turnout, visitors gained access to the pipeline by a nearby road and trespassed on the Trans-Alaska Pipeline right-of-way.
John Reeves, owner of Gold Dredge No. 8, a tourist attraction outside Fairbanks and near the turnout, contacted Alyeska in January 1991 to discuss a tourism idea he had. He spoke with Keith Burke, Alyes-ka's Fairbanks Manager. After receiving Burke's assurance that the tourism idea was "between us," Reeves orally disclosed his idea to build a visitor center at the turnout. He proposed that Alyeska lease him the land and he build the center, sell Alyeska merchandise, and display a "pig" and a cross-section of pipe.
Burke told him the idea "look[ed] good" and asked Reeves to submit a written proposal, which Reeves did two days later. The proposal explained Reeves'[s] idea of operating a visitor center on land leased to him by Alyeska. The proposal included plans to provide small tours, display a "pig," pipe valve, and section of pipe, sell refreshments and pipeline memorabilia, and plant corn and cabbage.
After submitting the proposal, Reeves met with Burke once again. At this meeting Burke told Reeves the proposal looked good and was exactly what he wanted. In Reeves'[s] words, Burke told him, "We're going to do this deal, and I'm going to have my Anchorage lawyers draw it." Reeves claimed he and Burke envisioned that the visitor center would be operating by the 1991 summer tourist season.
Reeves alleges that Alyeska agreed during this meeting (1) to grant access to the turnout for twenty years; (2) to allow Reeves to construct and operate an information center; and (8) to allow Reeves to sell merchandise and charge a $2.00 admission fee. Reeves stated that, in exchange, he agreed to pay Alyeska ten percent of gross receipts.
Over the next several months, Burke allegedly told Reeves that the deal was "looking good" and not to worry because it takes time for a large corporation to move. However, in spring 1991, Burke told Reeves that the visitor center was such a good idea that Alyeska was going to implement it without Reeves. By August 1991 Alyeska had installed a portable building at the turnout to serve as a visitor center; it built a permanent log cabin structure in 1992.
The members of the Alyeska Pipeline Club North (APCN) operated the visitor center and sold T-shirts, hats, and other items. APCN does not charge admission. A section of pipeline and a "pig" are on display. APCN employees provide information and answer visitors' questions. Members of APCN had suggested in 1987 that Alyeska create a visitor center at the turnout. However, Alyeska had rejected the idea at that time. Before meeting with Reeves, Burke did not know that APCN's visitor center idea had been raised and rejected by Alyeska in 1987.
Approximately 100,000 people visited the visitor center each summer in 1992 and 1998. It grossed over $50,000 in sales each year. The net profit for 1998 was calculated to be $5,000-$15,000. APCN received all the profit.)

In response to Alyeska's decision to use his idea for the visitor center without allowing him to participate in the venture, Reeves filed suit against Alyeska in May 1993. He alleged breach of oral contract, promissory estoppel, breach of implied contract, quasi-contract (unjust enrichment and quantum meruit), breach of the covenant of good faith and fair dealing, breach of license or lease agreement, and various torts related to the alleged contractual relationships. In pressing these claims, Reeves basically asserted two distinct theories: (1) that Alyeska had verbally given him a lease to develop the visitor center-or at least had entered into a binding contract to memorialize the terms of a lease; and (2) that, in return for disclosing his idea to Burke, Alyeska had promised not to implement or further disclose Reeves's idea without allowing him to participate in the implementation.

Superior Court Judge Charles R. Pengilly granted Alyeska's motion for summary judgment on all claims as to both theories; Reeves appealed. In Reeves I, we affirmed the summary judgment order as to all claims asserted under Reeves's first theory, holding that the statute of frauds barred enforcement of any oral lease agreement or any agreement to memorialize in writing the alleged contract to implement Reeves's participation in the visitor center. But we reversed and remanded as to claims under Reeves's theory that Alyeska breached an alleged disclosure agreement-that is, Alyeska's alleged promise that if Reeves disclosed his idea, Alyeska would not use it without including Reeves in the venture. In support of this theory on remand, Reeves asserted claims for breach of express contract, breach of implied contract, promissory estoppel, quasi-contract/unjust enrichment, and various related torts.

After a two-week trial, the superior court submitted five alternative claims to the jury: (1) express contract, (2) implied-in-fact contract, (8) promissory estoppel, (4) quasi-contract/unjust enrichment, and (5) misrepresentation. Judge Pengilly gave the jury special verdict questions on each of the claims for relief. The jury returned a verdict finding on the issue of liability that

@ Alyeska promised not to use Reeves's idea without allowing him to participate in its implementation;
® Alyeska broke this promise;
@ Alyeska used Reeves's idea; and
® Alyeska derived actual benefit from Reeves's disclosure of his idea.

The special verdict then separately addressed Reeves's alternative claims for breach of express and implied contract, promissory estoppel, quasi-contract/unjust enrichment, and misrepresentation. The court's instructions on damages as to each of the alternative claims, and the jury's respective awards on those claims, are as follows:

© On the express contract claim, the trial court instructed the jury to base its compensatory damages award on the amount necessary to place Reeves "in the same position that he would have been in had Alyeska kept its promise" to allow him to participate in implementing the visitor center. The jury returned an award of $2,989,000.
eAs to the implied contract claim, the court asked the jury to determine damages "in the amount of the value of the idea to Alyeska." The jury returned a verdict of $1,820,000.
e On Reeves's promissory estoppel claim, the court gave an instruction similar to its implied contract instruction, directing the jury to measure damages "in the amount of the value of any benefit [Reeves] conferred upon Alyeska." The jury returned a verdict identical to its implied contract verdiet: $1,820,000.
® On Reeves's quasi-contract/unjust enrichment claim, the court instructed the jury to determine "the amount of the value of the benefit which Alyeska has unjustly retained." The jury returned a verdict for $4,809,000.
® Last, the court instructed the jury on Reevesg's claim for misrepresentation. The instructions required the jury to find that Alyeska had engaged in intentional misrepresentation, asking the jury to- decide, "did [Burke] intend to break that promise at the time he made it?" The verdict form provided for both compensatory and punitive damages. To determine compensatory damages for misrepresentation, the court used a standard similar to the one it employed for Reeves's express contract claim, instructing the jury, "as nearly as possible, [to] place [Reeves] in the position he would have occupied had it not been for [Alyeska's] misrepresentation." The jury declined to award compensatory damages, finding that Reeves had failed to prove intentional misrepresentation. But the jury nevertheless awarded Reeves $7,500,000 in punitive damages.

After the jury returned these verdicts, Reeves moved for entry of judgment reflecting the compensatory awards on both his express contract claim-$2,989,000-and his unjust enrichment claim-$4,809,000-as well as the award of punitive damages for misrepresentation-$7,500,000. The superior court only awarded compensatory damages on Reeves's express contract. claim-$2,989,-000-and struck the punitive damages award.

Reeves appeals; Alyeska cross-appeals.

III. DISCUSSION

A. The Disclosure Agreement Was Enforceable.

On appeal, Reeves challenges the court's denial of punitive damages and its limited award of compensatory damages. But on cross-appeal Alyeska asserts that we need not decide these damages issues, because the disclosure agreement was unen-foreeable. Pointing to Reeves's admission at trial that Alyeska never promised to pay him any specified amount for disclosure of his idea-or even an unspecified reasonable value-Alyeska argues that the disclosure agreement lacked essential terms, was unen-forceably vague, and so was merely an agreement to agree. But we rejected a similar argument in Reeves I.

We held there that contract and contract-like theories may protect individuals who spend their time and energy developing unoriginal or non-novel ideas that others find useful, because "(ilt would be inequitable to prevent these individuals from obtaining legally enforceable compensation from those who voluntarily choose to benefit from the services of the 'idea-person.' " We further explained that "[i)f parties voluntarily choose to bargain for an individual's services in disclosing or developing a non-novel or unoriginal idea, they have the power to do so." As Reeves I implicitly recognizes, then, a disclosure contract is not a typical agreement for the sale of goods or services at an agreed-upon price; rather, it is an agreement for disclosure of an idea in exchange for a promise not to use the idea without including the disclosing party in its implementation.

Other courts agree with this view. The Ninth Cireuit Court of Appeals addressed an analogous situation in Landsberg v. Scrabble Crossword Game Players, Inc., and squarely rejected the same argument that Alyeska advances here. In that case, Landsberg authored a strategy book for winning at the game of Serabble; he then approached S & R, the makers of the Serabble game, to obtain permission to use the Scrabble trademark in his manuscript. After negotiations regarding S & R's possible publication of the manuscript were halted, S & R published its own strategy book, which S & R based upon Landsberg's idea. Landsberg sued. While finding that Landsberg's idea was not novel or original and that S & R's use of the idea in its book was not sufficiently similar to Lands-berg's manuscript to establish a copyright violation, the trial court nonetheless concluded that "Landsberg's initial disclosure of his manuscript was confidential and for the limited purpose of obtaining approval for the use of the Serabble mark, and ... given his expressed intention to exploit his manuscript commercially, defendants' use of any portion of it was conditioned on payment. On review of the district court's ruling, the Ninth Cireuit, applying California law, confirmed that a valid implied-in-fact disclosure contract arose in this context. The court further found that a breach of the contract could be proved by evidence sufficient to establish that S & R disclosed or used Landsberg's idea without compensation.

Here, as in Landsberg, the record contains sufficient evidence to support a finding that, in return for Reeves's agreement to disclose his idea, Alyeska promised him either confidentiality or participation in implementing the visitor center project. This promise is sufficiently definite as a matter of law to establish an enforceable disclosure agreement. Similarly, there can be no question that Reeves produced sufficient evidence to support the jury's finding that Alyeska breached this agreement by unilaterally exploiting Reeves's idea We thus reject Alyeska's assertion that the agreement's terms were too vague to establish Alyeska's liability for breach of its promise not to use Reeves's idea without including him in the venture.

B. The Special Verdict for Breach of Implied Contract Correctly Measured Reeves's Damages.

We must next determine the appropriate measure of damages for Alyeska's breach. Reeves insists that his compensatory damages should have included the jury's $4,809,000 award for unjust enrichment. Alyeska counters that a non-original idea has no intrinsic value and that Reeves I therefore limits Reeves's damages to "the fair market value of [his] services." But Reeves I touched only briefly on the proper measure of damages for breach of the disclosure agreement. Neither Reeves I nor other case law supports Alyeska's assertion.

Again, we find appropriate guidance in Landsberg. After concluding that the evidence supported the trial court's finding that S & R had formed and breached an enforceable disclosure agreement with Landsberg, the Ninth Cireuit expressly rejected S & R's suggestion that compensation for breach of that contract should be limited to the fair market value of Landsberg's work; the court instead accepted Landsberg's contention that the proper measure of damages was the value of Landsberg's idea to S & R-that is, the profits that S & R (and its publishing partner, Crown Books) actually realized:

Landsberg argues that the contract was not for the use of his manuscript, but for S & R's refraining from using it without his permission.... Landsberg was therefore entitled under the terms of the implied contract to more than the fair value of S & R's use. He was entitled to ... the profits from S & R's exploitation of [his work].

Because of the strong similarities between these two cases, we adopt Landsberg's holding as the proper measure for calculating damages here. As in Landsberg, the parties here reached a disclosure agreement without establishing the precise value of Reeves's proposal. But after agreeing not to use the proposal without including Reeves in its implementation, Alyeska breached its agreement and profited from its breach by unilaterally developing the visitor center. Under Landsberg, then, the proper measure of Reeves's compensatory damages is the profit that Alyeska actually realized by exploiting Reeves's idea. We thus conclude that the trial court properly rejected Alyeska's attempt to limit Reeves's damages to the fair value of his services.

But this conclusion next requires us to consider which, if any, of the special verdiet's alternative awards reflected a correct measure of Reeves's compensatory damages. The trial court entered judgment on the $2,989,000 verdict for breach of an express contract, which under the court's instructions, placed Reeves "in the same position that he would have been in had Alyeska kept its promise" to allow him to participate in implementing the visitor center. But by focusing on Reeves's potential lost revenues instead of Alyeska's actual profits, this measure of damages necessarily assumed that Reeves had the, express contractual right that Reeves I directly precluded-the right to participate in and directly profit from the proposed venture with Alyeska, rather than merely a right to insist that Alyeska not exploit his proposal without his involvement. By including lost profits that Reeves had no right to realize, then, the express contract verdict conflicted with Reeves I, im-permissibly opening the door to a verdict based on the terms of a verbal lease that was legally barred and never existed. Entry of judgment on this verdict was therefore improper.

We similarly conclude that the special verdict based on Reeves's unjust enrichment claim used an inappropriate measure of compensatory damages. In requiring the jury to determine damages "in the amount of the value of the benefit which Alyeska has unjustly retained," the unjust enrichment instruction essentially focused on the maximum potential profit that Alyeska might have realized, rather than on Alyeska's actual profits. The difference in focus is reflected in the jury's enhanced award of $4,809,000 for unjust enrichment. As already mentioned, however, the disclosure agreement only protected Reeves from unauthorized use by Alyeska; it gave him no vested right to maximized profits in the event Alyeska breached the disclosure agreement by exploiting his proposal. Moreover, as with the express contract claim, by inviting consideration of Alyeska's potential profits, this measure of damages conflicted with Reeves I by effectively inviting a verdict based on evidence concerning the legally barred lease agreement. In addition, because unjust enrichment is a judicially created quasi-contract remedy meant to prevent injustice where gaps in the law preclude recovery at law on a contract theory, it would be incongruous to award a greater recovery under this theory than the jury actually awarded for breach of implied contract. And finally, to award unjust enrichment damages in addition to breach of contract damages-as Reeves suggests we should-would, under the trial court's instructions, permit Reeves to receive a double recovery.

We last consider Reeves's implied contract claim. Under the trial court's instructions, the special verdict on this claim reflected the profits that Alyeska actually derived from its breach of the disclosure agreement: "the amount of the value of the idea to Alyeska." The jury returned an award of $1,820,000 using this measure. As we explained in Reeves I, "a reasonable fact-finder could determine that Burke's actions implied a promise to pay for disclosure of Reeves'[(s] idea." The jury found an implied contract based on the theory that Alyeska solicited disclosure by promising not to use the idea unless it first reached an agreement with Reeves that would allow him to share in the profits. The verdict thus comports with Reeves I. It similarly comports with Landsberg, which would entitle the jury to base its damages calculation on evidence of the profit or benefit that Alyeska realized from the visitor center, as opposed to the theoretical value of Reeves's services in developing and disclosing his idea or the potential but unrealized profits of either Reeves or Alyeska. Assuming that the implied contract verdict finds support in the evidence and was not the product of procedural error, then, we conclude that it relied on an appropriate measure of damages and would support a valid final judgment. Accordingly, we must next consider whether the implied contract verdict was supported by sufficient evidence or was flawed by any legal error occurring at trial.

C. Substantial Evidence Supports the Implied Contract Verdict.

Alyeska insists that the trial court should have granted its motion for remittitur or a new trial because the jury's awards were excessive under any reasonable measure

Remittitur is only proper when a jury returns an otherwise proper verdict awarding an amount of damages that the evidence cannot reasonably support. We may not use remittitur to reduce an award below the maximum possible award sustainable by the evidence, and we review the denial of a judgment notwithstanding the verdict only "to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment of the facts." Moreover, "(tlhe grant or refusal of a motion for a new trial rests in the sound discretion of the trial court, and we will not disturb a trial court's decision on such a motion except in exceptional cireumstances to prevent a miscarriage of justice. We will uphold a refusal to grant a new trial "if there is an evidentiary basis for the jury's decision."

Alyeska's argument thus requires us to inquire narrowly whether any record evidence, viewed favorably to Reeves, might reasonably support the jury's implied contract award. We find ample evidence in the record. Reeves's tourism expert, Dr. Lorin Toepper, testified that the visitor center generates both revenue-producing activities and non-revenue-producing activities, such as improving public relations and fostering goodwill. He estimated the center's overall actual value to Alyeska as falling within the range of $2.8 to $26 million, depending on the number of visitors.

Moreover, although Reeves's other expert, economist Francis Gallela, primarily addressed a different measure of damages-Alyeska's unjust enrichment from the center between 1991 and 1998-his testimony, when viewed in the light most favorable to Reeves, provided additional corroboration to Dr. To-epper's estimate of Alyeska's profits. Given this testimony, we find substantial evidence to sustain the jury's finding of $1,820,000 in damages on the implied contract claim. And finally, we note that other courts faced with the task of determining the maximum amount of damages supportable by the record in analogous contractual settings have upheld "reasonable approximation{s]" of damages, especially "where the difficulties in determining damages arise in large part from [the defendant's] own [breach].

D. Any Evidentiary Error Did Not Affect the Implied Contract Verdict.

It remains to be seen whether the verdict is the product of procedural error. Over Alyeska's objection, the trial court admitted extensive evidence concerning the proposed terms of the lease agreement between Reeves and Alyeska, Reeves's plans for developing and operating the visitor center, the actual value of the center that Alyes-ka developed, and its potential value to both Reeves and Alyeska. Alyeska argues that this evidence should have been'excluded because it was irrelevant to the matters properly at issue after our remand in Reeves I: the existence, terms, and breach of the disclosure agreement, as well as Reeves's resulting damages. We agree in part.

Under the Alaska Rules of Evidence, irrelevant evidence is inadmissible, but the test of relevance is lenient: evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Even so, much of the disputed evidence seems irrelevant: under the scope of the disclosure agreement we described in Reeves I and under our holding today concerning the measure of damages for the agreement's breach, evidence of Reeves's personal plans for the visitor center, the proposed terms of the lease, and the center's potential but unrealized value to both Reeves and Alyeska had little or no tendency to make any fact "of consequence to the determination of the action more or less probable;" to this extent, the evidence should not have been admitted. Yet regardless of any potential to prejudice this evidence posed with respect to Reeves's other claims, it had no obvious effect on the implied contract claim: as previously noted, the trial court's instructions on this claim limited the jury's award of damages to the value that Alyeska actually realized from its exploitation of Reeves's idea, not on the idea's potential value to either Reeves or Alyeska. Because the disputed evidence had no logical bearing on the jury's determination of the existence, scope, or breach of the disclosure agreement or on the jury's determination of profits Alyeska actually realized from the disclosure agreement's breach, any error in admitting the evidence was harmless as to the implied contract claim.

E. The Superior Court Properly Struck the Punitive Damages Verdict.

We last consider the issue of punitive damages. The jury returned a verdict for punitive damages of $7,500,000 in connection with Reeves's misrepresentation claim, despite finding that Reeves had failed to prove all necessary elements of misrepresentation. The superior court struck the award. Reeves nonetheless argues that the court erred by "striking the award in its entirety without the option of a remittitur or new trial." Claiming that this ruling violated his state and federal constitutional right to a trial by jury, Reeves seeks reinstatement of the verdict.

1. The jury verdict does not reflect a finding of negligent misrepresentation.

The trial court instructed the jury to award punitive damages only if it found all of the elements of intentional misrepresentation. Unless the jury found each element in Reeves's favor, the verdict form precluded it from awarding any form of damages-including punitive damages-on Reeves's claim of misrepresentation. The jury found that Burke did not intend to break his promise at the time that he made it; the jury thus awarded Reeves no compensatory damages for misrepresentation. Yet the jury awarded Reeves $7,500,000 in punitive damages on the same claim.

Reeves seeks to explain this seemingly inexplicable verdict by arguing that the jury made sufficient findings of negligent misrepresentation to sustain an award of punitive damages; and he further insists that punitive damages are available for an intentional breach of contract if the conduct giving rise to the breach is also a tort-even a tort based in ordinary negligence. These arguments are unpersuasive.

Although Reeves listed negligent misrepresentation as a cause of action in his second amended complaint, filed after the Reeves I remand to the trial court for further proceedings, the jury instructions and special verdict form omitted reference to negligent misrepresentation and focused on the elements of intentional misrepresentation. Specifically, the jury verdict form asked: "Did [Burke] intend to break that promise [not to use Reeves's idea without allowing him to participate in its implementation] at the time he made it?" The jury responded, "No." Based on this answer, the jury declined to award compensatory damages for raisrepresentation, finding that Alyeska's acts did not satisfy the required elements of misrepresentation.

Reeves nonetheless argues that the jury's findings suffice to establish that Alyeska committed negligent misrepresentation. Reeves cites as support the jury foreperson's explanation, upon questioning by the trial judge concerning the basis for the punitive damages award, that the jury believed that Burke developed an intent to deceive soon after he entered into the disclosure agreement with Reeves. Reeves suggests that a judgment for negligent misrepresentation should automatically be entered on a "lesser-included-tort" theory whenever a plaintiff fails to prove the necessary elements of intentional misrepresentation but establishes the elements of a negligent misrepresentation claim that was not properly submitted. But the law provides no support for this novel proposal.

Moreover, even accepting Reeves's proposal for argument's sake, his claim must fail because the jury's verdict did not amount to a finding of negligent misrepresentation. The following elements are required to establish negligent misrepresentation: (1) "the party accused of the misrepresentation must have made the statement 'in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, " (2) "the representation must supply 'false information, " (8) "there must be 'justifiable reliance' on the false information supplied," and (4) "the accused party must have failed 'to exercise reasonable care or competence in obtaining or communicating the information. "

Although Reeves failed to object to the absence of a jury instruction on negligent misrepresentation, he did object to the element of intentional misrepresentation that focused on whether Burke's promise not to exploit Reeves's idea was false when made: "I don't see why misrepresentation ... [or] fraud would be dependent upon occurrence in time." But our case law provides a reason that applies equally to both intentional and negligent misrepresentation:

to establish liability under [a negligent misrepresentation] theory it is not enough to demonstrate that subsequent occurrences made an originally-accurate representation ultimately false. For a representation to be actionable, both under the Alaska cases ... and under the Restatement, the representation must be false when made.

Thus, for Burke's promise to be actionable as a misrepresentation-whether intentional or negligent-the promise must have been false when it was made. The instruction on intentional misrepresentation was accurate in this regard, and Reeves failed to request any instruction at all on negligent misrepresentation. Because the jury found against Reeves on his misrepresentation claim, the trial court did not err in striking the punitive damages claim.

2. Punitive damages may not be awarded for breach of contract involving an unproved tort.

Reeves also suggests that even if the jury did not find all elements of misrepresentation in his favor, the evidence presented at trial supports entering judgment for punitive damages on his contract claims. But we follow the Restatement's position that "[plu-nitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable. In this case the jury failed to find for Reeves on all elements of his single tort claim, misrepresentation.

Reeves nevertheless refers to evidence presented at trial that he alleges established destruction of evidence, intentional misconduct directed at lawful operations, false testimony, and defamation. But these claims were not presented to the jury as separate tort theories that could have supported his claim for punitive damages, and it would be improper to speculate that the jury found that these torts were established, much less that they warranted an award of punitive damages. An award of punitive damages requires an express jury finding that a tort involving outrageous conduct was committed. The jury did not make such a finding here.

3. Denial of punitive damages did not violate Reeves's right to a jury trial.

Finally, Reeves argues that the trial court's failure to enter judgment on the jury's award of punitive damages violated his right to trial by jury. But this argument hinges on the incorrect assumption that the court struck a punitive damages award that was "lawfully and appropriately found by the jury." Reeves fails to recognize that the jury returned its award after misconstruing or disregarding the instructions on the special verdict form. Hence, the jury did not "lawfully" award punitive damages. The trial court thus had appropriate legal grounds to strike the award for punitive damages; it did not reweigh the evidence or otherwise interfere with the jury's verdict.

IV. CONCLUSION

We AFFIRM the superior court's order striking punitive damages. Because the special verdict on the express contract claim incorporates an improper measure of damages and because the judgment entered by the superior court based its award of compensatory damages on the express contract verdict, we VACATE the judgment. The proper measure of damages for breach of the disclosure agreement in this case is the value of the benefit that Alyeska enjoyed as a result of its breach. The jury's alternative special verdict on the implied contract claim establishes compensatory damages under this measure, is supported by the evidence, and is not affected by any procedural error. Accordingly, we REMAND for entry of a modified judgment on the implied contract claim.

EASTAUGH, Justice, not participating.

FABE, Chief Justice,

with whom MATTHEWS, Justice, joins, dissenting.

Today's decision departs significantly from our analysis in Reeves v. Alyeska Pipeline Service Co. (Reeves I) of the remedy for breach of an implied-in-fact contract. I disagree with today's plurality opinion because I believe that the trial court erred by failing to limit the jury's consideration of damages to the value of the services Reeves provided in developing and disclosing his unoriginal idea to Alyeska. In my view, the trial court should have instructed the jury that in the absence of an express agreement regarding compensation, the jury could only consider the value of the services provided by Reeves, not the potential commercial value of the non-novel idea. For this reason, I respectfully dissent.

In our decision in Reeves I, we touched on the question of the proper measure of damages for development and disclosure of an unoriginal or non-novel idea. At the trial on remand, Alyeska proposed a jury instruction that was consistent with the guidance that we provided in Reeves I and that would have limited damages for breach of the disclosure agreement of Reeves's unoriginal idea to the value of Reeves's services:

[Ylou may not compensate Mr. Reeves for the value, if any, of the idea itself:... [I]f you decide that Alyeska breached the disclosure agreement by developing the pipeline viewing area by using Mr. Reeves' idea, then you should consider kow much money, if any, Mr. Reeves should be paid for his services in disclosing his idea.

(Emphasis added.)

The trial court rejected Alyeska's proposed instruction and instead gave the jury five separate jury instructions on the measure of damages that corresponded to Reeves's various theories of recovery for breach of the disclosure contract. For breach of the express contract, the trial court instructed the jury to determine the amount necessary to place Reeves "in the same position that he would have been in had Alyeska kept its promise" to allow him to participate in implementing the visitor center. For breach of an implied-in-fact contract, the trial court instructed the jury to determine damages "in the amount of the value of the idea to Alyes-ka." The trial court instructed the jury to determine damages based on the promissory estoppel theory "in the amount of the value of any benefit [Reeves] conferred upon Alyeska." The unjust enrichment jury instruction directed the jury to determine damages "in the amount of the value of the benefit which Alyeska unjustly retained." On the final theory of recovery for misrepresentation, the trial court directed the jury to determine the amount of damages "that will, as nearly as possible, place [Reeves] in the position he would have occupied had it not been for [Alyeska's] misrepresentation."

We recognized in Reeves I that contract and contract-like theories may protect individuals who spend their time and energy developing unoriginal or non-novel ideas that may benefit others because "[ilt would be inequitable to prevent these individuals from obtaining legally enforceable compensation from those who voluntarily choose to benefit from the services of the 'idea-person.' We noted in our discussion of the implied-in-fact contract claim that when parties bargain for an individual's services in disclosing a non-novel or unoriginal idea, the services provided are like those of a writer, a doctor, or a lawyer: "each may provide a product that is not novel or original. Thus, "although Reeves is not a writer, his ideas are entitled to no less protection than those of writers, doctors, or lawyers."

So, in the context of our discussion of Reeves's contract theories, we intimated that, as with those of a doctor or lawyer, the value of Reeves's services in developing and disclosing an unoriginal idea would be the correct measure of damages, absent an express contract with a price term defined. We also noted in the context of our discussion of Reeves's quasi-contract claim that "lf Reeves' services unjustly enriched Alyeska, he should be compensated for the value of those services."

As we explained in Reeves I, "[ilf parties voluntarily choose to bargain for an individual's services in disclosing or developing a non-novel or unoriginal idea, they have the power to do so. If the parties reach an express agreement for monetary compensation in return for disclosure, then that agreed-upon amount would comprise the damages to be awarded upon a finding of breach of the express contract. Here, however, there was no evidence of an agreed-upon price for disclosure of Reeves's idea.

I agree with the court that the jury's finding of an implied-in-fact contract should be upheld. Reeves argued that Alyeska solicited his idea and that its manager asked him to reveal the substance of the idea. In addition, Reeves contended that Alyeska's later use of the idea created an implied contract for payment. This theory was consistent with our decision in Reeves I that "a reasonable fact-finder could determine that [the manager's] actions implied a promise to pay for the disclosure of Reeves' idea."

But although the lack of a specific term for payment for disclosure of an unoriginal idea does not render such an agreement invalid, it does limit the damages to the value of Reeves's service in developing and disclosing the idea. And in this case, the measure of damages is the same, whether the jury used theories of implied-in-fact contract, promissory estoppel, or quasi-contract to reach its conclusion that the disclosure agreement had been breached. In proposing its instruction, Alyeska correctly recognized that where there is no contract establishing the price term for the development and disclosure of an idea, a court must base its equitable remedy on the value of the performance of one party, here Reeves, unjustly retained by the other, here Alyeska.

As we suggested in Reeves I, if Reeves's experience or the written plan benefitted Alyeska, either in its timing or how it was presented, Reeves should be compensated for the value of his services in developing and disclosing his idea. "An injured party usually seeks, through protection of either his expectation or his reliance interest, to en-foree the other party's broken promise. However, he may, as an alternative, seek, through protection of his restitution interest, to prevent the unjust enrichment of the other party." Moreover, "[olecasionally a party chooses the restitution interest even though the contract is enforceable because it will give a larger recovery than will enforcement based on either the expectation or reliance interest."

As we noted in Reeves I, by disclosing his idea to Alyeska, Reeves substantially changed his position-he had significantly reduced his ability to bargain for the terms of the disclosure. Under a theory of promissory estoppel, the court can remedy the breach of promise by enforcing that promise. The amount of damages for the remedy, however, would equal the restitutionary remedy, the same remedy for unjust enrichment under a quasi-contract theory.

In summary, the appropriate measure of damages in this case, in light of the absence of express agreement establishing the amount of compensation for Reeves for the disclosure, is the fair market value of Reeves's services in disclosing the idea. Yet, the trial court directed the jury that, if it found in Reeves's favor on the implied contract claim, it should award "the amount of the value of the idea to Alyeska." The jury awarded Reeves $1,820,000 using this measure. Because the jury based its award on the revenues produced by the visitor center as well as the value of improving public relations and fostering goodwill for Alyeska, rather than evidence of the value of Reeves's services in developing and disclosing the idea, I believe that the jury's award should be vacated and the case remanded for a new trial on damages. I therefore dissent.

Order

On consideration of the Petition for Rehearing,

IT IS ORDERED:

1. In Reeves v. Alyeska Pipeline Service Co., this court divided evenly on the proper measure of compensatory damages for Alyes-ka's breach of contract, with two members of the court favoring one of the special verdiet's alternative awards and two concluding that none of the verdiet's theories correctly decided the issue. Addressing the effect of this divided vote, our opinion concluded "that the votes favoring the greatest degree of affir-mance will determine the outcome of this case but that the decision on compensatory damages will have no precedential effect."

2. Alyeska has petitioned for rehearing, arguing in part that this court "overlooked the inability of an evenly divided Supreme Court to direct a trial judge to enter a new judgment." In advancing this argument, Alyeska maintains that "an evenly divided Court eannot order a trial judge to enter a new judgment that he did not previously enter."

3. Alyeska's argument misunderstands the nature of the court's ruling on this issue. Although this court was evenly split on the proper measure of damages, all members of the court agreed upon the effect of its divided vote. The court was thus unanimous in holding that the two votes favoring the greatest degree of affirmance should prevail.

4. Having considered the parties' supplemental briefing on rehearing, the court finds no reason to disturb the original ruling. At least one other state supreme court has reached the same conclusion under almost identical circumstances, and Alyeska has cited no convincing authority supporting its position. Accordingly, the court unanimously denies rehearing on this point.

5. The court also unanimously denies rehearing on Alyeska's contention that the case should be reheard with a fifth justice participating.

6. Alyeska's remaining points address the opinion's ruling on the appropriate measure of damages. Rehearing on these points is denied by an evenly divided vote: Justices Bryner and Carpeneti vote to deny the petition on these points; Chief Justice Fabe and Justice Matthews dissent, voting to grant the petition.

The petition for rehearing is therefore DENIED.

Entered by the direction of the court.

EASTAUGH, Justice, not participating.

      . The court unanimously agrees that the jury correctly established Alyeska's liability for breaching the disclosure agreement. The court also unanimously agrees that the superior court properly declined to allow punitive damages. But we are evenly divided on the measure of compensatory damages: two justices conclude that one of the special verdict's alternative awards correctly determined compensatory damages and would therefore remand for entry of a modified judgment reflecting that award; two justices conclude that none of the special verdict's alternative theories decided the damages issue correctly.
      Our case law establishes that "[al decision by an evenly divided court results in an affir-mance." Ward v. Lutheran Hosps. & Homes Soc'y of Am., Inc., 963 P.2d 1031, 1037 n. 11 (Alaska 1998) (quoting Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997)). Additionally, we have recognized that "an affirmance by an evenly divided court is not precedent." Kenai v. Burnett, 860 P.2d 1233, 1246 (Alaska 1993) (Compton, J., concurring). In the present case, no member of the court favors outright affirmance. But two justices would affirm the jury's special verdict on both liability and an alternative theory of compensatory damages, whereas two would require a retrial on damages. In these circumstances, our case law indicates that the votes favoring the greatest degree of affirmance will determine the outcome of this case but that the decision on compensatory damages will have no precedential effect.

      . 926 P.2d 1130, 1133-34 (Alaska 1996) (footnotes omitted). Because we addressed the case on summary judgment, our decision in Reeves I stated the facts in the light most favorable to Reeves. Id. at 1133 n. 1. As used in Reeves I "pig" describes ""a device which passes through the pipeline to clean interior pipe walls, survey interior pipe shape and detect corrosion." Id. at 1134 n.2.

      . Id. at 1134

      . Id.

      . Id. at 1136.

      . Id. at 1134.

      . Id. at 1138-40.

      . Id. at 1145.

      . Id.

      . Id. at 1135.

      . Id. at 1142.

      . 802 F.2d 1193, 1196 (9th Cir.1986).

      . Id.

      . Id.

      . Id. at 1196-97.

      . Id. at 1196.

      . Reeves I, 926 P.2d at 1137.

      . 802 F.2d at 1198; see also Donahue v. United Artists Corp., 2 Cal.App.3d 794, 83 Cal.Rptr. 131, 135-36 (1970) (in situation of non-novel idea, recovery need not be limited to the value of the services provided; various measures of damages, including lost profits, may properly be considered).

      . Reeves I, 926 P.2d at 1133-34.

      . Id. at 1137-39.

      . Id. As already mentioned, the compensatory damages instruction on Reeves's claim for misrepresentation relied on a similar measure, asking the jury to restore Reeves to the position that he would have enjoyed had Alyeska not misrepresented its intent to exploit Reeves's proposal. Because the jury found that Reeves had failed to prove an intentional misrepresentation, however, it awarded no compensatory damages, thereby rendering this claim moot.

      . Reeves also argues that the unjust enrichment claim is separate from the express contract theory and that recovery is therefore possible under both; Reeves argues that this is so because the unjust enrichment theory applies to the lease agreement and not the disclosure agreement. But we have concluded that evidence of the lease agreement was inadmissible; the unjust enrichment claim therefore cannot survive on this argument.

      . The jury also awarded the same amount on the promissory estoppel claim. Because the implied contract and promissory estoppel awards were based on similar factual theories, were covered by identical damages instructions, and resulted in identical verdicts, we need not separately consider the estoppel verdict.

      . Reeves I, 926 P.2d at 1141.

      . Alyeska separately argues for remittitur on the ground that the verdict bears no relationship to the value of Reeves's services in developing and disclosing his idea. Because we have concluded that the value of those services is not the appropriate measure of damages, we need not consider this argument.

      . Exxon Corp. v. Alvey, 690 P.2d 733, 741-42 (Alaska 1984).

      . Id. at 742.

      . Richey v. Oen, 824 P.2d 1371, 1374 (Alaska 1992).

      . Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989).

      . State v. Will, 807 P.2d 467, 469 (Alaska 1991).

      . Alaska Tae Woong Venture, Inc. v. Westward Seafoods, Inc., 963 P.2d 1055, 1061 (Alaska 1998).

      . By Gallela's estimate, the center earned Alyes-ka between $2.8 million and $4.2 million in public relations benefits (depending on whether Dr. Toepper's or Alyeska's data were used); these figures fall within Dr. Toepper's estimation of the center's actual value.

      . See, eg., Air Tech. Corp. v. Gen. Elec. Co., 347 Mass. 613, 199 N.E.2d 538, 548 (1964).

      . Alaska R. Evid. 402.

      . Alaska R. Evid. 401.

      . The trial court asked the jury foreperson if the jury was aware that the award of punitive damages after answering "no'" to one of the questions about misrepresentation was, at least on its face, inconsistent. The jury foreperson answered: "'We felt that the only reason we answered no to that question is because it said at that time.... The assumption we had was the initial meeting And we didn't feel with [Burke and Reeves]. that [Burke] walked into this with misrepresentation in his heart. It might have happened a second and a half later, after [Reeves] left the room, when he talked to somebody else, or thought about it or whatever, but we felt ... that Alyeska was at serious fault for the rest of it, ... all the rest of it happened after the fact, it was the misrepresentation after that."

      . Bubbel v. Wien Air Alaska, 682 P.2d 374, 380 (Alaska 1984) (quoting Restatement (SEconp) or Torts § 552(1) (1977)).

      . Id. at 381. On remand, Reeves was permitted to present only claims related to the disclosure agreement, not the alleged lease agreement or memorialization agreement. See Reeves I, 926 P.2d at 1145. Yet even accepting at face value the foreperson's explanation for the punitive damages award, the misrepresentations the jury relied upon for the punitive damages claim relate to the later alleged agreements, which this court had eliminated in Reeves I. As the foreperson stated, [ilt might have happened a second and a half later, after [Reeves] left the room, when he talked to somebody else, or thought about it or whatever.... But we still felt that Alyeska was at serious fault for the rest of it.... And I still feel that Alyeska was misrepresented along the line.... I ... think it was just compounded after the fact [of the initial moment when they sat down at that initial meeting]." (Emphasis added.)

      . Reeves argues that the jury's punitive damages award was not the result of passion, prejudice, or sympathy. Presumably, he raises this argument to bolster his claim that this court should reinstate the verdict entered by the jury. We need not consider this argument because, as a matter of law, punitive damages are not available.

      . Restatement (Secomp) or Contracts § 355 (1979); see also Wien Air Alaska v. Bubbel, 723 P.2d 627, 631 (Alaska 1986).

      . 926 P.2d 1130 (Alaska 1996).

      . Id. at 1135 (citing 3 David Nimmer, NimmEr on Copywricnt § 16.01, at 16-3 (1994)).

      . Reeves I, 926 P.2d at 1142.

      . Id.

      . Id. at 1144 (emphasis added).

      . Id. at 1142.

      . Id. at 1141.

      . Id. at 1144.

      . Id.

      . Restatement (Seconp) or Contracts § 373 cmt. a (1981).

      . Restatement (SEcomp) or Contracts § 344 crt. d (1981).

      . Reeves I, 926 P.2d at 1142.

      . Resratemzent (Seconp) or Contracts § 90 (1981).

      . Reeves v. Alyeska Pipeline Service Co., 56 P.3d 660, 663, n. 1 (Alaska, 2002).

      . Id.

      . See Ringsby v. Dixon, 496 P.2d 179 (Wyo.1972).


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Evan E. RAMSEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7295.
    Court of Appeals of Alaska.
    Oct. 11, 2002.

      Michael Dieni, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    John A. Seukanee, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

A jury convicted Evan Ramsey of two counts of murder in the first degree, one count of attempted murder in the first degree, and fifteen counts of assault in the third degree. Superior Court Judge Mark I. Wood sentenced Ramsey to a composite term of 210 years to serve. Ramsey appeals both his conviction and his sentence. We affirm in part and reverse in part.

On Wednesday morning, February 19, 1997, sixteen-year-old Evan Ramsey entered Bethel High School with a .12 gauge shotgun hidden under his jacket. Ramsey immediately walked toward the student common area where several students were sitting. At the nearest table sat Joshua Palacios, a fellow high school student, talking with several of his friends. Palacios began to turn around and stand up when Ramsey pulled out the shotgun and shot Palacios in the stomach. Palacios later died from his wounds. Two students who were sitting across from Palac-ios, S.M. and RL., were also hit by pellets from the shotgun blast.

One of the art teachers at the high school, Reyne Athanas, was in the teacher's lounge when she heard the first gunshot. She entered the hallway and observed Ramsey shooting into the ceiling. She saw Palacios lying on the floor with another student. During this episode, Ramsey paced up and down the hall several times in a very threatening manner. She and Robert Morris, another school teacher, attempted to convince Ramsey to put the shotgun down and give up. Ramsey then aimed the gun at them, but did not shoot. Ramsey walked away from Athanas and Morris, heading in the direction of the school's main office where the school's administrative offices were located.

Meanwhile, Ronald Edwards, the school principal, had been walking through the school looking for Ramsey because he had heard that Ramsey was in the school with a gun. Edwards found Ramsey as he was approaching the main office. Ramsey aimed the shotgun at Edwards, and Edwards turned around to run back into the school's office. As Edwards was trying to get back into the office, Ramsey shot him in the back and shoulder. Edwards died in his office from the gunshot wounds.

Minutes after the shooting began, Bethel police officers arrived at the high school. Several officers entered the high school and saw Ramsey standing in the common area with the shotgun. Ramsey saw the officers and fired one round in their direction. After a brief exchange of gunfire, Ramsey put the shotgun down and gave up. According to the officers, as he threw the shotgun down, Ramsey yelled "I don't want to die." Officers were quickly able to detain Ramsey and take him into custody.

A grand jury indicted Ramsey on two counts of first-degree murder, three counts of attempted first-degree murder, and fifteen counts of third-degree assault. The State's theory at trial was that Ramsey sought revenge against both Palacios and Edwards. The State introduced testimony that Ramsey and Palacios got into an argument and fight two years before the shooting. The State also introduced a letter found in Ramsey's bedroom following the shooting that indicated Edwards was one of Ramsey's intended victims. The letter read, in part,

Hi, everybody. I feel rejected. Rejected, not so much alone. But rejected. I feel this way because the day-to-day mental treatment I get usually isn't positive. But the negative is like a cut, it doesn't go away really fast, they kind of stick. I figure by the time you guys are reading this, I'll probably have done what I told everybody I was going to do. Just hope a 12-gauge doesn't kick too hard, but I do hope the shells hit more than one person, because I am angry at more than one person. One of the big assholes is Mr. Ed-Ron Edwards, he should be there. I was told that this would be his last year, but I know it will be his last year. The main reason that I did this is because I am sick and tired of being treated this way everyday. Who gives a fuck about it? Now, I got something to say to all of those people who think I'm strange can suck my dick and like it. Life sucks in its own way, so I killed a little and kill myself. Jail isn't for me ever and wasn't.

Ramsey's major defense at trial was that he was suicidal and did not form the requisite intent to commit first-degree murder or first-degree attempted murder. According to Ramsey, his intent during the shooting was not to kill anyone but merely to seare the people at the school and foree the police to go to the high school and kill him. Ramsey's counsel described Ramsey's actions as "suicide-by-cop."

The jury convicted Ramsey of two counts of first-degree murder, one count of first-degree attempted murder, and fifteen counts of third-degree assault. The jury also acquitted him of two counts of attempted first-degree murder and one count of third-degree assault. Judge Wood sentenced Ramsey to a composite term of 210 years' imprisonment.

Judge Wood's refusal to allow Ramsey to introduce evidence of past physical and sercual abuse

In support of his defense, Ramsey asked the court's permission to introduce evidence of Ramsey's family history and history of past sexual and physical abuse committed against Ramsey while he was in foster care. Ramsey stated that he intended to argue that the history of a dysfunctional family combined with past incidents of physical and sexual abuse demonstrated why Ramsey was suicidal when he went to the high school with the shotgun. The State opposed the request and asked Judge Wood to preclude the proposed evidence as not relevant.

In his offer of proof, made immediately before his opening statement, Ramsey stated that in 1987 his father went to jail for ten years. After his father went to jail, his mother developed an alcohol problem. In 1988, the Department of Family and Youth Services (DFYS) removed Ramsey and his two siblings from his mother's custody. Following the removal, Ramsey's oldest brother, John Ramsey, was separated from Ramsey and the youngest brother, William. And finally, Ramsey and his younger brother were shuffled between ten different foster homes over a two-year period.

In support of his claim of past physical and sexual abuse, Ramsey stated that while Ramsey and William were in a particular foster home, the foster parents' biological son physically and sexually abused both Ramsey and William. The offer indicated that the biological son would come into the Ramsey' room at night to punch and pinch both Ramsey and William. During some of the incidents, the son would urinate into their mouths. According to the offer, a school nurse discovered the abuse and contacted DFYS. The offer claimed a subsequent investigation found that the abuse occurred and that DFYS removed the Ramsey brothers from the foster home.

Judge Wood agreed with Ramsey that his family history was relevant to explaining why Ramsey might feel suicidal, but noted that this was not precisely the issue. The charges against Ramsey required the State to prove that Ramsey acted with the intent to kill others. The fact that Ramsey might have also wished to kill himself would not be a defense. Alaska Statute 11.81.900(a)(1) declares that "when intentionally causing a particular result is an element of an offense, that intent need not be the [defendant's] only objective."

Although Judge Wood was willing to give Ramsey considerable latitude to introduce evidence of his past, Judge Wood believed that the proposed evidence of sexual abuse was too likely to distract the jury from the issues in the case. He believed that this potential for unfair prejudice would outweiigh the probative value of the evidence-unless Ramsey could show that his past subjection to sexual abuse was (1) likely to make him suicidal and at the same time (2) not just as likely to make him homicidal.

When Judge Wood suggested that Ramsey would need expert testimony to establish this point, Ramsey replied that there was no need for expert testimony-that the inference was obvious. Judge Wood disagreed. Confronted with Judge Wood's ruling, Ramsey either could not or chose not to offer expert testimony on this point.

At the conclusion of the State's case-in-chief, Ramsey asked the court to reconsider its previous ruling about the sexual and «physical abuse. Judge Wood declined to reverse his earlier ruling. He found that sufficient evidence had been introduced to allow Ramsey to argue his suicidal theory and to argue that Ramsey "wasn't thinking clearly" when he entered the high school. But he reiterated his finding that past incidents of physical and sexual abuse were not relevant to the case and found that, even if relevant, the incidents were more prejudicial than probative.

On appeal, Ramsey argues that Judge Wood abused his discretion because he should have taken judicial notice of the linkage between evidence of homosexual rape and the inclination to commit suicide. Ramsey contends that prior physical and sexual assaults have a clear tendency to show that Ramsey intended to commit suicide, not homicide.

A review of the record of the trial demonstrates that Ramsey was able to present substantial evidence about his background to support his defense. Ramsey presented testimony that his childhood was very difficult. Ramsey's oldest brother, John Ramsey, testified that he and his brothers were forced to move around often with their mother after their home burned down. This hardship was exacerbated when their father went to jail in 1986. Ramsey's mother developed a drinking problem, and DFYS removed the children from her care due to neglect. Once DFYS took custody of them, John Ramsey and his brothers were split apart. William, the youngest, testified how he and Ramsey bounced back and forth between several foster placements, ultimately ending up in Bethel, with Sue Hare. In addition to testimony about his family history, Ramsey also called W.N., a close friend, who testified that Ramsey threatened suicide two years before the shooting occurred. And, Kathryn Fritch, the mother of one of Ramsey's friends, testified that Ramsey expressed feelings of suicide and depression.

Judge Wood allowed Ramsey to introduce a substantial amount of evidence dealing with his family history and background. Furthermore, Judge Wood did not completely foreclose Ramsey from introducing the disputed evidence concerning prior physical and sexual abuse. Rather, Judge Wood questioned Ramsey's premise that such abuse would tend to make a child suicidal but would not tend to make the child homicidal. Judge Wood told Ramsey that he could introduce the disputed evidence if he offered expert testimony to support this premise; otherwise, the judge concluded, the prejudicial effect of the evidence would outweigh its probative value. Ramsey never offered the expert testimony.

The question, then, is whether Judge Wood abused his discretion when he required Ramsey to offer foundational expert testimony to support his premise that a child's subjection to physical and sexual abuse would tend to make the child suicidal as opposed to homicidal-or whether, as Ramsey contended, this premise was self-evident and needed no foundational support. We hold that reasonable judges could conclude that this premise was not self-evident and that the proponent of such evidence would need to support it with expert testimony. Accordingly, Judge Wood did not abuse his discretion when he required this foundational testimony from Ramsey.

Nurse Ford's testimony that Ramsey stated he was not suicidal during the initial health sereening interview

In rebuttal, the State called registered nurse Debbie Ford from the Department of Corrections. The State sought to rebut Ramsey's claim that he was suicidal during and after the shootings by showing that during an initial health sereening at the jail, Ramsey denied any suicidal thoughts within the last year.

Ford testified that she asked Ramsey about his suicidal tendencies during an initial screening at the jail. The initial sereening was held in Ramsey's holding cell that Ford described as a typical jail cell, six to eight feet by ten feet. She remembered two or three correctional officers in the holding cell with her during the initial screening. Ford testified that she was not qualified to make a psychological diagnosis of a patient but that the highest risk for a prisoner committing suicide was during his first twenty-four hours at the jail. The purpose of the initial screening and medical interview was to quickly assess and determine whether a prisoner posed a suicide risk or had any suicidal tendencies. During this initial sereening, Ramsey denied that he any suicidal thoughts "at the present time." During the second interview, which was held at the medical center, Ford sat at a desk and Ramsey at the opposite end. Two correctional officers stayed in the medical center with Ford and Ramsey for safety reasons. They stood a few feet away from Ramsey. Again, Ramsey denied having any suicidal thoughts within the past year.

Ford stated that if a prisoner showed any suicidal tendencies, she referred the prisoner to the mental health clinician. In Ramsey's case, based on his age and the seriousness of his offense, she referred him to the mental health clinician following her medical sereen-ing, even though Ramsey denied any suicidal thoughts or attempts.

Ramsey contends that Judge Wood erred in allowing Ford to testify to his statements because his statements were covered by the psychotherapist-patient privilege. The privilege is set out in Alaska Rule of Evidence 504(b).

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions, including alcohol or drug addiction, between or among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

In order for the privilege to apply, the communication in question must be confiden-tial Rule 504(a)(4) states that "(al communication is confidential if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family."

In Plate v. State, we discussed when a communication was confidential and therefore qualified for the privilege. In Plate, we discussed the clergy communicant privilege set out in Evidence Rule 506 and what is meant by the term "confidential communication." We noted in our discussion that the definition of a "confidential communication" was the same in the attorney-client privilege set out in Evidence Rule 503(b), the psychotherapist-patient privilege set out in Evidence Rule 504(b), and the clergy-communicant privilege set out in Evidence Rule 506(b). We concluded that, whether a communication was confidential depended on the reasonable expectation of the person consulting the lawyer, psychotherapist, or clergyman. The person "must believe that the conversation is to remain private, and the person's belief in the privacy of the conversation must be reasonable."

Applying this test here, we conclude that a reasonable person in Ramsey's position would not believe that the contents of his conversation with Nurse Ford about his mental condition were confidential. The purpose of Nurse Ford's questions about whether Ramsey had suicidal feelings was clear: she wanted to find out if Ramsey was a suicide risk and asking Ramsey was the most direct way of obtaining this information. Also, it was clear that Nurse Ford would not have treated this information as confidential. Certainly if Ramsey had indicated that he was suicidal, Nurse Ford would have alerted anyone necessary to minimize this risk, including many people whose responsibility was to guard Ramsey, not treat him. And it is foreseeable that the correctional officers, if informed that Ramsey was a suicide risk, would widely disseminate this information to minimize any risk to Ramsey. We conclude that Ramsey's communications to Nurse Ford about his mental condition were not confidential communications. Accordingly, Ramsey did not have the right to prevent Nurse Ford from testifying about his statements. Judge Wood, therefore, did not err in allowing Nurse Ford to testify about Ramsey's statements.

Did Judge Wood err in instructing the jury on the charge of attempted murder of SM.

'When Ramsey shot Palacios, S.M. and RL., two students sitting across from Palace-ios, were also hit by pellets from the same shotgun blast. The State's theory was that if Ramsey, with intent to kill Palacios, shot and injured S.M., he committed attempted murder in the first degree against S.M. Ramsey objected, contending that he could only be guilty of the attempted murder of S.M. if he had acted with the specific intent to kill SM. Judge Wood disagreed and instructed the jury that:

In order to establish the crime of Attempted Murder in the First Degree as charged in Count III of the indictment, it is necessary for the state to prove beyond . a reasonable doubt the following:
First, that the event in question occurred at or near Bethel ... on or about February 19, 1997;
Second, that Evan Ramsey intended to commit the crime of Murder in the First Degree as to Count II [First-Degree Murder of Palacios] and;
Third, that the defendant shot S.M. with a firearm, which constituted a substantial step toward the commission of Murder in the First Degree.

Judge Wood allowed the State to argue in summation that if Ramsey had fired the shotgun at Palacios with the specific intent to kill him and had simultaneously injured S.M. (thereby taking a substantial step), Ramsey was guilty of attempted murder in the first degree of S.M. Judge Wood precluded Ramsey from arguing to the jury that the jury had to find that Ramsey had a specific intent to kill S.M. to find him guilty of the attempted murder of S.M. Ramsey contends that Judge Wood erred. We agree.

The parties point out that other jurisdictions that have addressed this or similar issues have reached entirely different results. Some jurisdictions hold that attempted murder is appropriately charged if the defendant's actions killed the intended victim and also injured an unintended victim as a matter of public policy and deterrence. Other jurisdictions have held that attempted murder is an inappropriate charge under the theory that attempt, as an inchoate offense, requires the specific intent to kill a specific vietim.

The doctrine of transferred intent arose in early common law to impute criminal liability to a person who, acting with the intent to harm, caused injury to an unintended victim. To avoid injustice, courts developed the theory of transferred intent, holding the individual responsible for the injury or death to the unintended victim. Most commentators, however, note that transferred intent is a misleading half-truth because at common law the requisite mental state was "malice aforethought," which included the intent to kill anyone. These commentators note that the law, even at common law, did not require the ultimate person harmed be the intended victim.

The doctrine of transferred intent is unnecessary to ensure criminal lability under Alaska's statute defining first-degree murder.

Alaska Statute 11.41.100 defines murder in the first degree as:

(1) with intent to cause the death of another person, the person (A) causes the death of any person.

(emphasis added).

The plain language of AS 11.41.100 imputes criminal liability to anyone who, with the intent to cause death, causes death. The statute does not require the State to prove that a defendant had a specific intent to cause the death of a particular person to convict the defendant of murder. Therefore, under Alaska law, if a defendant acts with the intent to cause the death of another person, the defendant is guilty of murder for the death of any person whose death is caused by his act.

The question presented in this case is whether a similar rationale can be applied to attempted first-degree murder. To be guilty of attempted first-degree murder in Alaska, a person must (1) intend to cause the death of another, and (2) take a substantial step causing the death of any person. The State argues that Ramsey intended to cause the death of Palacios and that his wounding of Palacios was a substantial step towards causing S.M.'s death.

The problem with the State's argument is that its logic leads to the conclusion that Ramsey could have been found guilty of the attempted murder of everyone in the school. The jury certainly found that Ramsey intended to cause the death of Palacios. And because his actions would have placed almost any reasonable person in the school in fear of serious physical injury, it is hard to say where the State's attempted murder theory would stop. A defendant can be found guilty of attempted murder whether or not he actually injures his intended victim. Therefore, the State's argument, carried to its logical extension, would allow it to convict Ramsey of the attempted murder of everyone in the building. ‘

Alaska law authorizes a separate conviction for homicide or assault for every vie-tim of a defendant's assaultive act. See State v. Dumlop, (holding that a defendant who kills and injures several victims by one as-saultive act is properly convicted of a separate homicide or assault for each victim); see also Cooper v. State, (holding that a defendant who pointed a firearm at three police officers was guilty of three counts of assault). Thus, to determine Ramsey's crimes, we must assess Ramsey's physical acts and culpable mental state pertaining to each victim.

The jury found that Ramsey acted with intent to kill Palacios. Thus, his act of firing the shotgun at Palacios would constitute either attempted first-degree murder (if Palac-ios survived) or completed first-degree murder (if Palacios died). If, at the same time, Ramsey killed or injured one or more bystanders while he was trying to kill Palacios, Ramsey would be guilty of an additional crime for each of these bystanders-not an additional attempted murder, but rather an additional homicide if the bystander died or, if the bystander survived, either an attempted homicide or an assault, depending on Ramsey's culpable mental state with regard to that bystander.

Here, under the jury instructions that embodied the State's erroneous theory of attempted murder, the jury was asked to find whether Ramsey wounded S.M. while trying to kill Palacios. The jury so found. But the jury was not asked to decide other pertinent matters.

For instance, if Ramsey had intended to kill S.M. (in addition to Palacios), then Ramsey could properly be convicted of the attempted murder of S.M. (regardless of whether he injured S.M.). Even if Ramsey did not intend to kill SM., if Ramsey inflicted serious physical injury on S.M., while trying to kill Palacios, he might properly be convicted of first-degree assault on S.M. Alternatively, if Ramsey merely inflicted physical injury on S.M. (while trying to kill Palacios), he might properly be convicted of second-degree assault on S.M.

Accordingly, we conclude that Judge Wood erred in instructing the jury and allowing the State to argue that it could convict Ramsey of attempted murder of S.M. if Ramsey intended to kill Palacios and simultaneously injured S.M. We conclude that the proper instruction would have required the jury to find Ramsey had the specific intent to kill S.M. before it could convict Ramsey of the attempted murder of S.M. Based on this rationale, Ramsey's conviction for attempted murder in the first degree must be reversed.

The State argues that, if we conclude that the jury was improperly instructed on attempted murder in the first degree, we should remand the case to the trial court with directions to enter a verdict for assault in the first degree. The State contends that, under the court's instructions, it is clear that the jury had to find that Ramsey recklessly caused serious physical injury to S.M. with the shotgun and that this would constitute assault in the first degree. But we agree with Ramsey that the record does not conclusively establish that the jury found that Ramsey caused serious physical injury to SM. Consequently, all we can say with certainty is that the jury had to have found that Ramsey committed the crime of assault in the second degree, which requires the State only to prove that Ramsey, with the intent to cause physical injury to Palacios, caused physical injury to S.M. On remand, the State is entitled to the entry of a verdict against Ramsey for the offense of assault in the second degree. Or, if the State elects, the State can retry Ramsey for attempted murder in the first degree or any lesser offense.

Sentencing issues

Lastly, Ramsey contends that Judge Wood made a mistake in determining when he would be eligible for discretionary parole. He points out that Judge Wood appears to have assumed that Ramsey would be eligible for discretionary parole after he had served one-fourth of his sentence. Ramsey points out that he will not be eligible for parole until he had served at least one-third of his sentence.

Since we have reversed Ramsey's conviction for attempted murder in the first degree, on remand, Judge Wood will be required to resentence Ramsey. We therefore conclude it is unnecessary for us to address Ramsey's contention that Judge Wood incorrectly relied on his parole eligibility because we are already remanding the case for resen-tencing.

Ramsey's conviction for attempted murder in the first degree is REVERSED. His other convictions are AFFIRMED.

      . AS 11.41.100(a)(1)(A).

      . AS 11.41.100(a)(1); AS 11.31.100(a).

      . AS 11.41.220(a)(1)(A).

      . ARE. 504(a)(4).

      . 925 P.2d 1057, 1065-67 (Alaska App.1996).

      . Id. at 1066.

      . Id.

      . See, eg., Ochoa v. State, 115 Nev. 194, 981 P.2d 1201, 1205 (1999); State v. Fennell, 340 S.C. 266, 531 S.E.2d 512, 517 (2000).

      . See, eg., Ford v. State, 330 Md. 682, 625 A.2d 984, 998 (1993), superseded by statute on other grounds as stated in Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999) ("[Tiransferred intent makes a whole crime out of two halves by joining the intent as to one victim with the harm caused to another victim. Transferred intent does not make two crimes out of one. Where the crime intended has actually been committed against the intended victim, transferred intent is unnecessary and should not be applied to acts against unintended victims."); State v. Hinton, 227 Conn. 301, 630 A.2d 593, 602 (1993); People v. Bland, 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107, 1110, 1116-17 (Cal.2002).

      . See Ochoa, 981 P.2d at 1203-04; see also, 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.12(d), 399-402 (1986).

      . See LaFave & Scott, Substantive Criminal Law § 3.12(d), at 399-401; see also Ward v. State, 997 P.2d 528, 533 (Alaska App.2000) (Mannheimer, J. concurring) (citing Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 921-23 (3d ed.1982)) (noting that, in most cases, the doctrine of transferred intent is an unnecessary fallacy).

      . See LaFave & Scott, Substantive Criminal Law § 3.12(d), at 400; Perkins & Boyce, Criminal Law at 921-22.

      . AS 11.31.100(a); AS 11.41.100 {emphasis added).

      . 721 P.2d 604 (Alaska 1986).

      . 595 P.2d 648 (Alaska 1979).

      . Ramsey could be charged under AS 11.41.200(a)(1): reckless infliction of serious physical injury by means of a dangerous instrument. Ramsey could also conceivably be charged under AS 11.41.200(a)(2): acting with intent to cause serious physical injury to another, and causing serious physical injury to anyone. The latter theory rests on the premise that a person who acts with intent to kill necessarily acts with the lesser culpable mental state of intent to cause serious physical injury.

      . Ramsey could be charged under AS 11.41.210(a)(1): acting with intent to cause physical injury to another, and causing physical injury to anyone by means of a dangerous instrument. Again, this theory rests on the premise that a person who acts with intent to kill necessarily acts with the lesser culpable mental state of intent to cause physical injury.

      . See Nix v. State, 624 P.2d 823, 825 (Alaska App.1981).

      . AS 11.41.200.

      . AS 11.41.210(a)(1) provides that "a person commits the crime of assault in the second degree if ... with intent to cause physical injury to another person, that person causes physical injury to another person by means of a dangerous instrument...."

      . See Nix, 624 P.2d at 824-25.


text:
    Albert ALLEN, Appellant, v. STATE of Alaska, Appellee.
    No. A-07430.
    Court of Appeals of Alaska.
    Oct. 11, 2002.
   Order

Petition for Rehearing

Albert Allen seeks rehearing of our decision of his appeal, Allen v. State, 51 P.3d 949 (Alaska App.2002). He points out that we failed to address some of his challenges to his sentence. We therefore grant rehearing in order to address Allen's remaining arguments.

At sentencing, Allen asserted that the facts of his case established three of the mitigating factors codified in AS 12.55.155(d): (d)(8)-that he committed the homicide under some degree of duress, threat, or compulsion; and (d)(6) or (d)(7)-that he committed the homicide after being subjected to either "serious" or "significant" provocation from the victim. Superior Court Judge Milton M. Souter rejected these three proposed mitigating factors. Instead, Judge Souter found that Allen's crime was among the most serious second-degree murders-because, in fact, Allen had committed first-degree murder. Allen argues that the judge's rulings were mistaken.

Allen's arguments regarding the proposed mitigating factors are moot. The aggravating and mitigating factors listed in AS 12.55.155(c) and (d) apply only to cases governed by presumptive sentencing. Allen was convicted of second-degree murder, a crime that is not governed by presumptive sentencing. When a defendant is sentenced for second-degree murder, the judge is authorized to impose any sentence within the range of imprisonment that the legislature has established for that offense, regardless of whether aggravating or mitigating factors are proved.

Even though the aggravating and mitigating factors codified in AS 12.55.155(c) and (d) do not apply to murder (in either the first- or second-degree), we have approved the use of these factors by analogy in murder sentencings-as points of reference when the parties argue how a particular defendant's crime should be viewed in comparison to a typical murder. But in such cases, the aggravating and mitigating factors are employed only by analogy. The judge's sentencing authority is not affected by the judge's findings on these proposed factors. Similarly, the judge's authority to consider these factors is not affected by whether the proposed factors are proved by clear and convincing evidence (as would be required under AS 12.55.155(F) # the factors were being used to increase or reduce a presumptive term).

For these reasons, we have repeatedly held that when a judge's authority to impose a particular sentence does not rest on the judge's findings concerning contested aggravating or mitigating factors, any challenges to the judge's findings are moot. We apply this same rule in Allen's case.

Moreover, it is clear from Judge Souter's sentencing remarks that he rejected Allen's proposed mitigating factors for the same reason that he found Allen's crime to be among the most serious of second-degree murders: Judge Souter concluded that Allen had in fact committed first-degree murder by intentionally killing an unarmed victim. We discussed this point at some length in our original opinion:

Judge Souter agreed that Allen had been provoked by Labat. The judge noted that Labat had come to Allen's residence and had made "dire threats" to Allen-threats of what Labat would do to Allen if Allen continued his relationship with La-bat's girlfriend. But Judge Souter concluded that "although violence was threatened, no violence was offered". The judge found that Labat was not armed when he came to Allen's house, and he further found that Allen knew that Labat was unarmed. Judge Souter acknowledged that Allen had testified at trial that he believed Labat was armed with a handgun, but the judge declared that Allen's testimony on this point had been "just perfu-ry". "This man never believed that the victim had a gun, or he never would have chased him with a knife."
Judge Souter found that Allen chased Labat "Iwhile Labat] was running away . in ... totally frightened retreat-complete retreat, running headlong down the street, ... trying to avoid this defendant". He found that Allen "pursued [Labat] over 200 feet down the street, and once or twice around a pickup truck, in order to stab him". Judge Souter further found that, after Allen stabbed Labat, he "violently smashed [Labat's head] to the pavement ... [and] started stomping on the victim's head. And then, after he did that, [Allen] kicked the victim's body so violently that he lifted him up off the pavement".
In sum, Judge Souter concluded that even though Labat offered Allen some provocation, Allen's response was "completely out of proportion". Allen "totally flew off the handle and became irrational and acted entirely outside the law" when he armed himself with a knife and chased Labat down the street. The judge found that Allen's offense was among the most serious within the definition of second-degree murder because Allen intended to kill Labat. That is, the judge found that Allen was factually guilty of first-degree murder.

Allen, 51 P.3d at 961.

Judge Souter's characterization of Allen's offense is based on reasonable conclusions from the evidence. We therefore uphold Judge Souter's findings, and we again uphold Allen's 66-year sentence for second-degree murder.

      . See AS 12.55.125(b).

      . See Sakeagak v. State, 952 P.2d 278, 284 (Alaska App.1998) (approving a judge's consideration of these statutory aggravating and mitigating factors in a first-degree murder sentencing); Gregory v. State, 689 P.2d 508, 509 (Alaska App.1984) (approving a judge's consideration of these factors in a second-degree murder sentencing).

      . See Krack v. State, 973 P.2d 100, 104 (Alaska App.1999); Nagasiak v. State, 890 P.2d 1134, 1135 (Alaska App.1995).
      See also Cook v. State, 36 P.3d 710, 730 (Alaska App.2001) (when the sole legal significance of proposed aggravating factors would have been to authorize the sentencing judge to impose a sentencing exceeding the normal ceiling for first felony offenders under AS 12.55.125(k), and when the judge did not exercise this authority, any challenges to the judge's findings on these aggravators factors were moot).