author: ~ LEHMAN, Chief Justice.

text:
    Richard CROSS, Appellant (Defendant), v. BERG LUMBER COMPANY, Appellee (Plaintiff).
    No. 99-91.
    Supreme Court of Wyoming.
    July 20, 2000.
    Rehearing Denied Aug. 8, 2000.

      Representing Appellant: BJ. Baker of Brown, Drew & Massey, LLP, Casper, WY.
    Representing Appellee: James A. Hardee, Douglas, WY.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   ~ LEHMAN, Chief Justice.

This case concerns a disputed piece of heavy machinery, a road grader. Berg Lumber Company sued Richard Cross for the tortious conversion of this grader and for replevin. After a bench trial, the district court awarded Berg damages in the amount of $83,400 and ordered that the grader be returned to Berg. Cross takes issue with the district court's application of the statute of limitations, findings of fact, and calculation of damages. Finding no error, we affirm.

ISSUES

Appellant raises three issues:

1. The conclusion of the District Court that the claim of Appellee Berg Lumber Company, Plaintiff below, was not barred by statute of limitations is incorrect as a matter of law and is subject to being corrected by the Supreme Court.
2. The conclusion of the Court at page 1 of the Decision Letter that Crail took the grader without Berg's permission is clearly erroneous, is contrary to both the pleadings and the evidence, and therefore the District Court should have ruled as to whether or not Berg is estopped from asserting ownership to the grader, based on the evidence presented.
3. The Court in awarding damages misapplied the law of damages of the State of Wyoming and made findings and conclusions contrary to both law and to the undisputed facts.

Appellee also discerns three issues:

1. Did the District Court properly determine that Plaintiff Berg Lumber Company's claim was not barred by the Statute of Limitations?
2. Did the District Court properly dispense with a consideration of Defendant's theory of estoppel when no facts were presented to support such a theory?
8. Did the District Court properly determine damages based upon the facts ascertained by the Court and the applicable law?

STANDARD OF REVIEW

Because this case was decided after a bench trial, the factual findings of the judge are not entitled to the more limited review afforded a jury verdict. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2585 at 780 (1971). "Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence." Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997).

The purpose of specific findings under Rule 52(a) is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Lebsack v. Town of Torrington, 698 P.2d 1141, 1146 (Wyo.1985); Cline v. Sawyer, 600 P.2d 725, 730 (Wyo.1979); Whitefoot [v. Hanover Ins. Co.], 561 P.2d [717] at 720 [(Wyo. 1977]. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Shores v. Lindsey, 591 P.2d 895, 899 (Wyo.1979); 9 Wright & Miller, [Federal Practice and Procedure: Civil], § 2585 at 429, 731. Deference is given to the opportunity of the trial court to assess the credibility of the witnesses. Shores 591 P.2d at 899. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 732-33. The appellant bears the burden of persuading the appellate court that the finding is erroneous. 9 Wright & Miller, supra, § 2585 at 729.
On appeal, findings of fact are not set aside unless clearly erroneous. Shores, 591 P.2d at 899; Whitefoot, 561 P.2d at 720; 9 Wright & Miller, supra, § 2585 at 729. The definitive test of when a finding is clearly erroneous was adopted by the United States Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 395, 68 S.Ct. at 542. See Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 670, 110 S.Ct. 2034, 2041, 109 L.Ed.2d 677 (1990), cert. denied 505 U.S. 1204, 112 S.Ct. 2990, 120 L.Ed.2d 868 (1992) (reaffirming the United States Gypsum Co. test). Wyoming accepted this standard for Rule 52(a) in Shores, 591 P.2d at 899. Alternatively, a determination that a finding is against the great weight of the evidence means a finding will be set aside even if supported by substantial evidence. Rocky Mountain Turbines, Inc. v. 660 Syndicate, Inc., 623 P.2d 758, 762 (Wyo.1981); Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 735 n.10.
Conclusions of law made by the district court under Rule 52(a) are not binding upon this court and are reviewed de novo. Shores, 591 P.2d at 900; 9 Wright & Miller, supra, § 2588 at 752. "Findings of fact of the trial judge can also lose the insulation of the clearly erroneous standard if they are induced by an erroneous view of the law, United States v. United States Gypsum Co., 333 U.S. at 394, 68 S.Ct. at 541; and United States v. Richberg, 398 F.2d 523 ([5th Cir.] 1968), or contain factual and legal conclusions that reflect the application of an improper legal standard." Shores, 591 P.2d at 899-900.

Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538-39 (Wyo.1993).

Damages are findings of ultimate fact. In a jury trial, the "jury's determination of the amount of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, or other improper cause had invaded the trial." Coulthard v. Cossairt, 803 P.2d 86, 92 (Wyo.1990). But the standard of review after a bench trial is less deferential. "Damages, like apportionment of fault, are reviewed as fact and are not reversed unless clearly erroneous." S. Childress, A Standards of Review Primer: Federal Civil Appeals, 125 F.R.D. 319, 330 (1989), (citing Lincoln Nat'l Life Ins. Co. v. NCR Corp., 772 F.2d 315 (7th Cir.1985) NCH Corp. v. Broyles, 749 F.2d 247 (5th Cir.1985); Stern v. Satra Corp., 539 F.2d 1305 (2d Cir.1976)).

FACTS

In 1989, Berg Lumber Company purchased a Caterpillar 120 motor grader for $19,700. Berg used the grader to push dirt and snow and for road construction, grading, and maintenance. In 1991, Berg moved the grader to its Casper sawmill. At that time, Berg also contracted with Joe Crail to deliver logs to the Casper sawmill.

In October or November, 1991, without Berg's knowledge or permission, Crail took the grader from Casper to Richard Cross' ranch in Converse County, where Crail used the grader to grade access roads to facilitate logging. Crail damaged Cross' property by knocking down gates, burying irrigation ditches, and marring roads. Crail also owed Cross $5,500.00 for logs that he had removed from the property. In November 1991, when he learned that Crail had taken the grader, George Berg telephoned Crail and requested its return. Crail promised to return it. The grader was not returned; and, in the spring of 1992, Berg again spoke with Crail. Crail said he had left the grader on the Taylor ranch and that he did not have the money to hire someone to bring it back. Berg then traveled to Douglas and to the Taylor ranch, where he was unable to find the grader.

Berg later learned that the grader was on the Cross ranch. He went there and saw it at Cross' shop, with the blade down and the wheels off, He spoke with Cross, who told him that he wanted to use the grader to repair the damage done by Crail Berg agreed with this proposal "to make it right"-meaning that, if his contractor Crail had caused damage to Cross, he would let Cross use the grader to repair that damage. Berg told Cross that the grader's clutch might not be working smoothly. Cross said he would fix it so that he could use it. Berg acquiesced and told Cross he would pick up the grader when the damage was repaired.

During the summer of 1992, Berg sent a truck down from Montana to pick up the grader. Cross did not allow the driver to take the grader, saying he had not yet had time to repair the damage to his ranch. Berg allowed Cross to retain the grader to repair the damage. In 1998, Berg sent another truck to get the grader; but, for reasons not apparent from the record, the grader remained in Wyoming at that time. In June 1994, Berg again tried to reclaim his grader. Cross refused to allow Berg's employees onto his property to view the grader.

In the summer of 1996, Berg's agent called Cross to reclaim the grader. Cross answered this demand by claiming that the grader was gone-that someone had come with a truck and hauled it away. On September 4, 1996, Berg's agent reported this alleged theft to the Converse County Sheriff s Office. Another Berg employee hired an airplane to fly him over the Cross ranch. From this aerial vantage, he located the grader concealed in an area that was not visible from the public road. By and through counsel, Berg formally demanded return of the grader on October 9, 1996. This lawsuit was filed on January 5, 1998.

At trial, both George Berg and Richard Cross testified. Among the other witnesses were several who established various elements of damage, including a heavy equipment expert from Wyoming Machinery Company who testified that the grader had a monthly rental value of $2,500. After hearing all the evidence, the district court entered judgment for the plaintiff in the sum of $83,400 and issued a Writ of Replevin directing Cross to return the motor grader to Berg Lumber. This appeal timely followed.

I. STATUTE OF LIMITATIONS

Cross argues that the four-year statute of limitations in this case began to run in 1993, not 1996, and that this action is therefore time barred. He contends that when Berg sent a truck to the Cross ranch in 1998 to pick up the grader, permissive use expired and the conversion claim accrued.

"[Clonversion occurs when a person treats another's property as his own, denying the true owner the benefits and rights of ownership." Ferguson v. Coronado Oil Co., 884 P.2d 971, 975 (Wyo.1994). To establish a conversion claim, the plaintiff must prove that:

(1) he had legal title to the converted property; (2) he either had possession of the property or the right to possess it at the time of the conversion; (8) the defendant exercised dominion over the property in a manner which denied the plaintiff his rights to use and enjoy the property; (4) in those cases where the defendants lawfully, or at least without fault, obtained possession of the property, the plaintiff made some demand for the property's return which the defendant refused; and (5) the plaintiff has suffered damage by the loss of the property.

Marchant v. Cook, 967 P.2d 551, 556 (Wyo.1998) (citing Frost v. Eggeman, 638 P.2d 141, 144 (Wyo.1981)); see also McCarthy v. James E. Simon Co., 923 P.2d 747, 750 (Wyo.1996).

The statute of limitations for the torts of conversion and trespass to chattels is four years. Wyo. Stat. Ann. § 1-8-105(a)(iv){(B) (Lexis 1999). The cause of action accrues when the forces wrongfully put in motion by the defendant produce injury. Duke v. Housen, 589 P.2d 334, 343 (Wyo.1979), cert. denied 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86. Thus, the four-year limitations period for conversion begins running when the plaintiff knew or should have known that the property was wrongfully converted. O'Donnell v. Western Nat'l Bank, 705 P.2d 1242, 1245 (Wyo.1985). A cause of action for the wrongful taking of personal property is not deemed to have acerued until the wrongdoer is discovered. Wyo. Stat. Ann. § 1-8-106 (Lexis 1999). j

The district court found that permissive use was extended until 1996. This finding of fact will not be set aside unless clearly erroneous. Although the tortured history of this case reveals that Berg made numerous attempts to retrieve the grader prior to 1996, there is no evidence that Cross engaged in fraudulent or tortious conduct until then. The ongoing negotiations and extensions of permissive use refute the contention that the tort accrued in 1998. It was not unreasonable for the fact finder to conclude that the tort of conversion accrued when Cross lied to Berg and falsely reported that the grader was not on his property. The district court reasoned:

This case was filed on January 5, 1998, which is less than four years after both the 1994 and 1996 attempts to get the grader back. Consequently, those incidents do not impact this issue. The cause of action is barred by the statute of limitations only if Berg knew or should have known of Cross's intentions prior to January, 1994. The Court finds that none of the incidents described in the trial testimony that occurred before that date would have given Berg, or any other reasonable person in his position, cause to believe that Cross intended a wrongful detention of the grader to such extent that the statute of limitations for the replevin cause of action should have begun to run. Berg was told, and apparently believed, that Cross needed the grader to repair damage caused by Crail. Later, Cross either told Berg's employees that he was not yet done with the grader, or that it needed repairs, or that he had made repairs on it, or that he needed to speak directly to Berg. The fact that Berg was willing to continue to deal with Cross throughout this ordeal in a non-confrontational manner should not be found unreasonable, and should not be held against him.

Cross has not demonstrated that this conclusion was clearly erroneous.

Cross also argues that Berg should be precluded from arguing that Cross' possession of the grader was permissive because of contradictory statements in the complaint. Judicial estoppel

is sometimes referred to as a doctrine which estops a party to play fast and loose with the courts or to trifle with judicial proceedings. It is an expression of the maxim that one cannot blow hot and cold in the same breath. A party will just not be allowed to maintain inconsistent positions in judicial proceedings....

Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976). Judicial estoppel requires that "where a man is successful in the position taken in the first proceeding, then that position rises to the dignity of conclusiveness." Erhart v. Flint Engineering & Const., 939 P.2d 718, 724 (Wyo.1997) (citing Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 566 (1930)). There is no indication in the record or briefs that Berg was ever successful in the position at issue; but since the judicial estop-pel argument is not supported by cogent argument or pertinent authority, we will not consider it. See May v. May, 945 P.2d 1189, 1191 (Wyo.1997).

II, APPELLATE REVIEW OF FACTUAL FINDINGS

Cross contends that the district court was clearly erroneous when it found that Crail took the grader without Berg's permission. Cross then reasons that Berg is estopped from asserting ownership of the grader. The district court found

that Berg did not, as a matter of fact, allow Crail to deal with the grader as if it was his own. The testimony was that Crail took the grader without Berg's permission, and that as soon as he discovered the taking, Berg began to try to get the grader back from Crail. There was no evidence that Berg in any way authorized Crail in general to treat the grader as if he owned it, or that he authorized Crail in particular to deal with Cross in regard to the grader. It would be more tempting to surmise from the evidence that Crail actually lied to Berg as to the whereabouts of the grader, perhaps because, as Cross claims, Crail had already "given" Cross the grader as payment or security on a debt.

This factual finding is supported by ample evidence in the record. Cross argues that Berg admitted in the complaint that he authorized Crail to utilize the grader. Crail was authorized to use the grader, but not to take it. Berg never authorized Crail to take the grader to Cross' ranch.

In effect, Cross argues that he is a bona fide purchaser, an innocent third party who was mislead by Crail's apparent authority to dispose of the grader. This argument, however, would only apply if Cross were asserting legitimate ownership of the grader. But Cross himself disclaimed any ownership interest in the grader. He asked Berg if he could borrow the grader to repair damage done by Crail. One does not seek to borrow that which he already owns. And under, questioning from the bench, Cross admitted that he knew the grader was not his: "I never wanted the grader. I think I always made that clear to anybody that Mr. Berg sent, that I didn't want the grader. I just wanted to be paid." And he admitted that Berg did indeed claim ownership of the grader: "I didn't know that he owned the grader. I mean, he told me, but that didn't mean he owned it."

The district judge, as fact finder, had the opportunity to gauge the demeanor and assess the credibility of live witnesses who told confusing and contradictory stories. We cannot determine, based on appellate review of a cold record, that these findings of fact are clearly erroneous.

III. DAMAGES

Appellant contends the district court's damage calculation was erroneous because the court relied upon an improper legal standard. While damages are normally subject to clear error review, the underlying legal standards are pure issues of law subject to de novo review.

The district court awarded $83,400 in incidental damages as follows:

1. Return of the grader.
2. $10,000.00 to repair the engine.
3. $400.00 to replace the cutting edge and batteries.
4. $900.00 for tire replacement (50% depreciation).
5. $4,600.00 for costs of attempted recovery of the grader.
6. $67,500.00 for loss of use ($2,500.00 x 27 months since 10/96).

Each of these damage components was supported by competent nonspeculative evidence.

Replevin

The proper remedy in a replevin action is return of the detained property plus incidental damages:

Although the action of replevin is founded upon a tortious detention, it is not one to determine claims sounding in tort. It is analogous to an action of trespass, but is in part a proceeding in rem, to regain possession of the goods and chattels, and in part a proceeding in personam, to recover damages for the caption and detention, and is based not upon any act of the plaintiff, but upon the illegal acts of the defendant. It is a possessory action the gist of which is the right of possession in the plaintiff. The primary relief sought therein is the return of the property in specie; damages are merely incidental.

66 Am.Jur.2d Replevin § 3 (19783) (footnotes omitted). In the case at bar, the plaintiff did not style the action as one for replevin, but that is how the district court analyzed it. Replevin, trespass, and trover (conversion) are concurrent remedies for a wrongful taking of goods. Id. at § 6. Appellant does not contest the order directing him to return the grader in his damages argument.

Repair Costs

Wyoming Machinery's expert witness testified that it would cost between $4,500 and $12,000 to repair the grader's engine. His best estimate was between $10,000 and $12,000. Although there was some conflicting evidence, and a dispute over who caused the damage, the fact finder was certainly free to accept these figures and assign $10,000 in damages to repair the engine. One should note that there was evidence that the grader became inoperable while wrongfully detained by Cross. The $10,000 repair cost finding is not clearly erroneous.

Maintenance Costs

The trial court assigned $400 to replace the cutting edge and batteries and $900 to replace worn tires. These findings were supported by expert testimony. The expert also testified that these costs may result from normal use. While Cross maintains that he only used the grader for about an hour and that Crail should be held responsible for this damage, the fact finder was free to disbelieve this testimony. These determinations are not clearly erroneous.

Special Damages

One of Berg's employees testified that the cost of numerous attempts to retrieve the grader and of hiring an airplane to search for the grader amounted to $4,600. Appellant objects that these costs should not be recoverable because they preceded the date when the tort accrued in 1996.

Berg did not discover the conversion until 1996 because Cross purposely misled him as to his true intentions. One can reasonably infer from the cireumstances that Cross never intended to return the grader, that he lied to Berg when he promised to return it. Thus, the wrongful detention predates the discovery and acerual of the tort by several years. Under this interpretation, it is reasonable to assess recovery costs preceding the discovery of the conversion.

Recovery costs are a species of special damages and must be specially pleaded and proved. General damages are those which naturally and necessarily flow from the wrongful act; they are implied by law and are the natural consequences of the wrongful act. Henderson v. Coleman, 19 Wyo. 183, 115 P. 439, 448 (1911), reh'g denied 19 Wyo. 183, 115 P. 1136 (1911). General damages need not be pled. Western Alfalfa Milling Co. v. Worthington, 31 Wyo. 82, 223 P. 218, 220-221 (1924). Special damages are not the necessary result of the wrongful act and are not implied by law; they must be specially pled with a reasonable degree of particularity, although one need not plead a sum certain. W.R.C.P. 9(g); Melehes v. Wilson, 774 P.2d 573, 579 (Wyo.1989); Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854).

In the instant case, the plaintiff pled several elements of special damages relating to the recovery of the grader. There was sufficient testimony to support the court's allocation of $4,600 in special damages. This finding is not clearly erroneous.

Restitutionary Damages

The court awarded $67,500 for loss of use, based on $2,500 per month for 27 months between the date of conversion (October 1996) and the date of trial (January 1999). In effect, this is an award of restitution requiring the tortfeasor to disgorge the amount by which he was unjustly enriched by his wrongdoing. Appellant complains that this determination is legally erroneous, as this amount exceeds the quantum of Berg's injury.

Wyoming recognizes that there are several methods for computing conversion damages. "Valuation of property is a question of fact, and there is no universal standard for such a determination. Thus, the question is left to the trier of fact to be decided on the basis of the facts and cireum-stances of each case." O's Gold Seed Co. v. United Agri-Products Financial Services, Inc., 761 P.2d 673, 676 (Wyo.1988). In computing damages, "the primary objective [is] to determine the amount of loss, applying whatever rule is best suited to that purpose." 1d.

Although actions in replevin are "restitutionary in character, they are classified as tort actions." Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181, 190 (1961). Restitu-tionary damages may be an appropriate remedy for the tort of conversion where other methods of computing damages are inadequate. "For some types of tort actions and for certain kinds of breaches of contract, the injured party has an option of seeking resti-tutionary recovery. In these cases, damages are measured by the benefits received by the defendant rather than the losses sustained by the plaintiff" 22 Am.Jur2d Damages § 34 (1988) (footnotes omitted). See also Restatement, Restitution, §§ 150-154.

The plaintiff may "waive the tort and sue in assumpsit," meaning that the plaintiff can have a restitutionary recovery for the gains the defendant made by converting the chattel. For example, if the chattel was worth $10 when it was converted by the defendant, and he later sells it for $20, the plaintiff would choose this option.

Dobbs, The Law of Torts § 67 (2000).

Historically, there has been much confusion about assumpsit and restitutionary remedies. At common law, assumpsit was a form of action whereby a legal obligation was implied at law. See Arthur L. Corbin, Waiver of Tort and Suit in Assumpsit, 19 Yale L.J. 221 (1910). One British jurist noted that "the whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought." Holt v. Markham, 1 K.B. 504, 513 (1923).

"Restitution based upon unjust enrichment cuts across many branches of the law, including contract, tort, and fiduciary relationship, but it also occupies much territory that is its sole preserve." G. Palmer, Law of Restitution § 1.1 at 2 (1978).

Unjust enrichment is an indefinable idea in the same way that justice is indefinable. But many of the meanings of justice are derived from a sense of injustice, and this is true of restitution since attention is centered on the prevention of injustice. Not all injustice but rather one special variety: the unjust enrichment of one person at the expense of another. This wide and imprecise idea has played a creative role in the development of an important branch of modern law.

Id. at 5 (footnotes omitted).

In modern terms, an action of assumpsit is not technically a waiver of tort, but rather it is the choice of one of two alternative remedies. Ablah v. Eyman, 365 P.2d at 192. "One whose money or property is taken by fraud or embezzlement, or by conversion, is entitled to restitution measured by the defendant's gain if the victim prefers that remedy to the damages remedy." Dobbs, Law of Remedies § 4.1(1) p.553 (1993).

In civil jurisprudence, Wyoming has adopted and still employs the English common law as modified by decision. Wyo. Stat. Ann. § 8-1-101 (Lexis 1999); see State v. Foster, 5 Wyo. 199, 38 P. 926 (1895). Resti-tutionary damages for conversion have been long recognized in the law:

It is obvious that the owner of property, which has been wrongfully converted, should possess a right to institute such a suit for the injury as will afford him an ample indemnification. If the wrong doer hath sold, or used and then sold the property, the owner may waive the tort, and in assumpsit recover the net proceeds received both for the use and by the sale. Cowp. 371, Hambly vs. Trott; 10 Mass.Rep. 436. The amount recoverable in as-sumpsit cannot, upon general principles, operate unfavorably to the trespasser.
In an action ex contractu, nothing can be obtained from him except what has in fact been received for the use and by sale of the property: while in one ex delicto, he may be subjected vindictively to pay much more than the real value of the article converted. Considering him, therefore, in the words of Jackson, J., in Cummings et al. vs. Noyes, 10 Mass. R. 436, as "a purchaser, or agent, or a bailee," gives him no just cause of complaint, because it visits on him no actual loss; the amount recovered being merely the amount obtained as the fruits of the trespass.

Chauncy v. Yeaton, 1 N.H. 151, 154-55 (1818) (emphasis supplied).

Wyoming has recognized that restitutionary damages are historically related to, yet distinct from, the equitable cause of action termed "unjust enrichment":

The plaintiff's claim, as set out in his complaint, is for the benefit gained by the joint tortfeasors' action. If a benefit is derived by the wrongdoers, recovery may be had on the basis of a promise implied in law and the benefit recovered. Ablah v. Eyman, 1961, 188 Kan. 665, 365 P.2d 181, 90 A.L.R.2d 766; Creach v. Ralph Nichols Co., 1953, 37 Tenn.App. 586, 267 S.W.2d 132; Swope v. Pageton Pocahontas Coal Co., 1947, 129 W.Va. 813, 41 S.E.2d 691; Olwell v. Nye & Nissen Co., 1946, 26 Wash.2d 282, 173 P.2d 652, 169 A.L.R. 139; Felder v. Reeth, 9 Cir.1929, 34 F.2d 744. See also the discussion in Restatement of the Law, Restitution, on recovery of benefits tortiously acquired, beginning at p.522, and Oleck, Damages to Persons and Property, 1961, § 206, p.371, et seq.
The touchstone of the rule is the moral obligation arising out of unjust enrichment to the tortfeasor. The principle is of ancient origin. It has lost its early common law fictions and is firmly entrenched as a cause of action with only its "historical echoes" remaining.

Western Nat'l Bank of Casper v. Harrison, 577 P.2d 635, 641-642 (Wyo.1978) (footnote omitted).

Thus, restitution is an appropriate remedy for some tortious conduct. See also, Colo. Interstate Gas v. Natural Gas Pipeline Co., 661 F.Supp. 1448, 1479 (D.Wyo.1987), rev'd on other grounds 885 F.2d 683, 697 (10th Cir.1989). Despite the historic limitation on the assertion of equity jurisdiction, the availability of the legal restitution remedy is not dependent upon inadequacy of alternative remedies. G. Palmer, Law of Restitution § 1.6 at 38-34 (1978).

The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such cireumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.

Rocky Mountain Turbines, Inc. v. 660 Syndicate, Inc., 623 P.2d 758, 763 (Wyo.1981) (quoting 66 Am.Jur.2d Restitution and Implied Contracts § 8, (1973) p.945); see also Roberts v. Roberts, 64 Wyo. 433, 196 P.2d 361 (1948), reh. denied 64 Wyo. 433, 197 P.2d 697. Where wrongfully detained property has a value for use, the measure of damages is the value of such use during the detention period. 66 Am.Jur.2d Replevin § 120 (1978) (citing, inter alia, Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181 (1961)).

Commentators have also termed the restitutionary measure an "accounting of profits":

An accounting of profits usually has three basic justifications: (1) it represents compensation to plaintiff for sales that were improperly diverted from plaintiff to defendant because of defendant's acts; (2) it prevents unjust enrichment by a defendant; and (8) it deters willful violations of law. An accounting may be ordered even if defendant actually lost money on a prohibited transaction, or made no profit at all.

Cerillo, Proving Business Damages § 148 (2 4 ed.1991).

The unjust enrichment accounting approach is more appropriate where the defendant's conduct is especially egregious:

Such an "unjust enrichment" approach is especially appropriate where strict application of some other standard would not adequately compensate plaintiff in a case where an injustice has taken place, or to deter willful violations in the future. An accounting is also useful where plaintiff may have difficulty proving lost profits because it is a new business without an operating history. If a defendant's profits as a result of an improper interference exceed what plaintiff would have realized if there were no breach of contract, i.e., defendant's profits exceed plaintiffs losses, some courts still assess damages based on the amount of the profits defendant has obtained. The purpose of this is to prevent inequity. See National Merchandising Corp. v. Leyden, 370 Mass. 425, 348 N.E.2d 771, 775 (1976) (holding an accounting of defendant's profits an acceptable basis of damages "because an intending tortfeasor should not be prompted to speculate that his profits might exceed the injured party's losses, thus encouraging commission of the tort ..."). Unless an accounting is made of defendant's profits, parties will be tempted to engage in the conduct at which the tort is aimed in the hope that they may profit from their own wrongdoing. See also Phillips Chemical Co. v. Morgan, 440 So.2d 1292 (Fla.Dist.Ct.App.1983), petition for review denied, 450 So.2d 486 (Fla.1984); Schechter v. Friedman, 141 N.J.Eq. 318, 57 A.2d 251 (1948).

Cerillo, § 534.

The district court in this case found that Cross' conduct was "certainly egregious," but did not rise to "the level of misconduct necessary to support attorney's fees or punitive damages." Although there are some overlapping policies underlying the doctrines supporting punitive damages and the unjust enrichment remedy, they are not the same. One purpose of tort damages is to compensate the plaintiff for his loss, but the measurement of such loss is not always an exact science. Since restitution may exceed mere compensation to the plaintiff without exceeding the defendant's unjust gain, it is not punitive. Dobbs, Law of Remedies § 4.1(4). In the context of conversion, courts have recognized the legitimacy of restitution-ary damages:

However plausible, the appellant cannot be heard to say that his wrongful invasion of the respondent's property right to exclusive use is not a loss compensable in law. To hold otherwise would be subversive of all property rights since his use was admittedly wrongful and without claim of right. The theory of unjust enrichment is applicable in such a case.

Developers Three v. Nationwide Ins. Co., 64 Ohio App.3d 794, 582 N.E.2d 1130, 1136 (1990) (quoting Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 173 P.2d 652, 654 (1946). Thus, the unjust enrichment remedy is not punitive but is one method of compensating the plaintiff's loss. Id. at 1135-86. This remedy is particularly appropriate where the plaintiff's loss is more difficult to measure than the defendant's unjustly saved avoidance costs. See S. Levmore, Unifying Remedies: Property Rules, Liability Rules, and Startling Rules, 106 Yale L.J. 2149, 2157 (1997). Thus, "while inadequacy of the damage remedy is not a prerequisite to restitution, the fact of inadequacy strengthens the case for restitution." G. Palmer, § 1.6 at 39. Certainly, an award of restitution can be harsh and is not appropriate in all cases, but where a tortfeasor consciously and wrongfully misappropriates another's property, he should expect to be dealt with harshly:

The remedy in restitution rests on the ancient principle of disgorgement. Beneath the cloak of restitution Hes the dagger that compels the conscious wrongdoer to "disgorge" his gains. Disgorgement is designed to deprive the wrongdoer of all gains flowing from the wrong rather than to compensate the victim of the fraud. In modern legal usage the term has frequently been extended to include a dimension of deterrence. Disgorgement is said to occur when a "defendant is made to 'cough up' what he got, neither more nor less." From centuries back equity has compelled a disloyal fiduciary to "disgorge" his profits. He is held chargeable as a constructive trustee of the ill-gotten gains in his possession. A constructive trustee who consciously misappropriates the property of another is often refused allowance even of his actual expenses. Where a wrongdoer is shown to have been a conscious, deliberate misappropriator of another's commercial values, gross profits are recoverable through a restitutionary remedy.

Warren v. Century Bankcorporation, Inc., 741 P.2d 846, 852 (Okl.1987) (emphasis in original; footnotes omitted). Even Judge Posner, guru of the law and economics movement, has recognized that restitution has a rightful place in intentional tort cases: "to make the tort worthless to the tortfeasor and thereby channel resource allocation through the market." R. Posner, Economic Analysis of the Law 194 (3 rd ed.1986).

In the case at bar, it would be difficult to calculate Berg's loss in terms of ° opportunity costs. Also, by converting and concealing the grader and then lying about its whereabouts, Cross engaged in willfully deceptive misconduct that should be discouraged. For these reasons, application of the unjust enrichment remedy is appropriate. The question remains, how does one measure the amount to be disgorged? There are five factors that assist in measuring restitution:

1. the increased assets in the hands of the defendant from the receipt of property;
2. the market value of services or intangibles provided to the defendant, without regard to whether the defendant's assets were actually increased; that is, the amount which it would cost to obtain similar services, whether those services prove to be useful or not;
3. the use value of any benefits received, as measured by (i) market indicators such as rental value or interest or (M) actual gains to the defendant from using the benefits, such as the gains identified in item (5) below;
4. the gains realized by the defendant upon sale or transfer of an asset received from the plaintiff;
5. collateral or secondary profits earned by the defendant by use of an asset received from the plaintiff, or, what is much the same thing, the savings effected by the use of the asset.

Dobbs, Law of Remedies § 4.5(1) (footnotes omitted).

The damages awarded in this case are supported by the second factor, the market or rental value of the grader (even if the grader did not prove to be useful); the third factor, the use value of the grader; and the fifth factor, the savings effected by using the grader.

This measure of damages can be termed negative unjust enrichment, i.e., the defendant was unjustly enriched by not having to rent a road grader. A benefit is conferred upon the defendant where, by tor-tiously using the plaintiff's property, he saves expense or loss that might otherwise be incurred is any form of advantage. Ablah, 365 P.2d at 190. Thus, to measure negative unjust enrichment or recoverable profit, courts may consider saving of expense. See Tilghman v. Proctor, 125 U.S. 136, 146, 8 S.Ct. 894, 899, 31 LEd. 664 (1888); Telex Corp. v. International Business Machines Corp., 510 F.2d 894, 932 (10th Cir.1975). "Unjust enrichment can occur when a defendant uses something belonging to the Plaintiff in such a way as to effectuate some kind of savings which results in or amounts to a business profit." Branch v. Mobil Oil Corp., 778 F.Supp. 35, (W.D.Okl.1991) (citing D. Dobbs, Handbook on the Law of Remedies § 4.5 at 278 (19783); Tilghman v. Proctor, 125 U.S. at 146, 8 S.Ct. at 899; Olwell v. Nye & Nissen Co., 26 Wash.2d 282, 173 P.2d 652).

Historically, tort and contract have been the primary fonts of civil lability at common law; yet restitution based on unjust enrichment is also a vital legal theory. G. Palmer § 1.1 at 1-2. Not every cireumstance demands application of the disgorgement principal; but in certain cases, where justice so requires, the law empowers judges and juries with this important tool to, remedy wrongdoing. This is such a case.

CONCLUSION

The district court's findings of fact were not clearly erroneous, and its conclusions of law were legally correct.

Affirmed.

      . This article provides a useful analysis of appellate standards of review and is well respected in the federal court system. Practitioners' Guide to the United States Court of Appeals for the Tenth Circuit 42 (1998). Civil practitioners before this court may find it helpful as well.

      . The distinction between legal and equitable restitution is a fine one which would not affect the outcome of this case. The primary difference is that with legal restitution, the parties have a right to a trial by jury. As this case was tried before a judge and neither party requested a jury trial, this issue is inapplicable.

      . Conversion (pure coercive transfer) is not an acceptable substitute for purchase on the free market. Restitutionary damages can thus be justified by applying Learned Hand's renowned negligence formula, where the tortfeasor is liable if the cost of reasonable precautions (B) is less than the product of the probability of injury (P) and the magnitude of potential loss (L) (B < PL). See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947). Judge Hand's tort calculus can also be applied to intentional torts, where B has a negative value. See Posner at 193-95.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Fred J. SCHIKORA, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.
    No. S-8972.
    Supreme Court of Alaska.
    Aug. 25, 2000.

      Michael A. MacDonald, Downes, MacDonald, & Levengood, P.C., Fairbanks, for Appellant.
    Linda T. McKinney, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETTI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Although Fred Schikora maintained his primary home in Alaska, work and leisure often took him outside Alaska. The Department of Revenue withheld his permanent fund dividends for 1992, 1993, and 1994 because the absences he reported exceeded those allowed under former AS 48.23.005(a), AS 48.23.095(8), and their implementing regulations. Schikora made timely appeals of those decisions, but a Senior Revenue Hearing Officer and the superior court upheld the department's decisions.

Scehikora appeals. The crux of his argument is that allowable absence rules apply only to Alaskans who apply for a permanent fund dividend "absentee," i.e., from outside the state. Because we find that the superior court interpreted the permanent fund dividend statute correctly, we affirm.

II. FACTS AND PROCEEDINGS

The Permanent Fund Dividend (PFD) program offers dividends to qualifying Alaska residents. ° At the times relevant to this appeal, PFD residency was defined by former AS 48.23.095(8) and by former 15 Alaska Administrative Code (AAC) 28.168. Specifically, the statutory definition of residency required physical presence in the state, but allowed exceptions for education, military service, and the like. By regulation, the department permitted absences for up to 180 days per year for any reason consistent with an intent to remain permanently in Alaska.

Fred Schikora claims to have lived in Alaska since 1945. While he had many ties to the state, he spent much of his time outside Alaska, particularly in Mexico and South America. His 1992 and 1998 dividend applications reported absences in excess of 180 days. Nevertheless, he was in Alaska when he mailed those applications. Because "business" and "vacation" are not allowed absences under former AS 48.23.095(8), the only absences he claimed that might not affect his PFD eligibility were medical absences claimed for the 1994 qualifying year.

A. Schikora's 1992 and 1998 Applications

Schikora's applications for 1992 and 1993 dividends were denied by the department because Schikora was Outside for 196 days during the 1992 qualifying year and 212 days during the 1998 qualifying year. He appealed those denials, and was ultimately granted full, formal administrative hearings.

The revenue hearing officer considered and rejected Schikora's argument that, since he was a state resident for general purposes under AS 01.10.005, his PFD application should not be reviewed for allowable absences since he was present in Alaska on the day he applied. The hearing officer went on to review Schikora's history of absences for the 1992 and 1998 qualifying years:

[Ilt appears that the Applicant always intends to return to Alaska from his frequent trips, but he does not intend to remain permanently in the state. Instead, he intends to return to Alaska so that he may leave again. Although the vast majority of residents intend to leave the state for vacation or other reasons, on perhaps an annual basis, the cumulative 180-day rule is effective in distinguishing between those who are absent temporarily and those who are absent more often than not.

The hearing officer concluded that the vacation and business reasons for Schikora's trips were not allowable under former AS 48.23.005(a)(1998) or the applicable regulations and affirmed the denial of Schikora's dividend.

B. 1994 Allowable Absence Claim

In his 1994 PFD application, Schikora reported 237 days of cumulative absence. Of these, he claimed that 178 were for continuous medical treatment. The department denied this application because Schikora failed to substantiate his claim of continuous treatment; his application indicated only a few consultations with various doctors. Schikora pursued his appeal rights and ultimately sought a formal hearing.

While that hearing was pending, the PFD Division moved for summary adjudication of the administrative proceeding. Its affidavit offered Schikora's applications as evidence that either (1) Schikora was outside Alaska for more than 180 days and could not prove a medical absence or (2) his absence in addition to the claimed medical absence exceeded the forty-five days allowed under former 15 AAC 28.163(c)(16)(C). In either case, the division claimed that denial was proper.

Schikora's affidavit in response to the summary adjudication motion mirrored his legal arguments and did not dispute the department's facts. On the basis of the parties' affidavits and memoranda, the hearing officer granted the PFD Division's motion for summary adjudication.

C. The Appeal Before Judge Wood

The superior court heard Schikora's appeal of the administrative decisions. After briefing and oral arguments, Judge Wood affirmed the department rulings but applied a different interpretation of the PFD statute. Schikora now appeals the superior court's decision.

III. DISCUSSION

A. Standard of Review

In reviewing the decision of a superior court sitting as an intermediate court of appeal, we apply our independent judgment without deference to the superior court's decision. The Department of Revenue hearing officer's final denial of Schikora's dividend was an administrative determination, which we review independently. The facts of this case are, for the most part, undisputed. We apply the substantial evidence test to the few factual questions presented.

B. The AS 48.28.005 Residency Requirements

Former AS 48.28.005(a) set out the PFD eligibility requirements that govern this case.

(a) An individual is eligible to receive one permanent fund dividend each year in an amount to be determined under AS 483.28.025 if
(1) the individual applies to the department;
(2) on the date of application the individual is a state resident;
(8) the individual was a state resident for at least the calendar year immediately preceding January 1 of the current dividend year;
(4) the individual has been physically present in the state at some time during the prior two calendar years before the current dividend year; and
(5) the individual is ... a citizen of the United States [or a qualified alien].

It is undisputed that Schikora met requirements one, four, and five. Thus, this case turns on whether he qualified as a "state resident" as that term applied to requirements two and three.

"State resident" is defined for general purposes at AS 01.10.055,8 and again for dividend eligibility at former AS 48.23.0905. As we recognized in Brodigan v. State of Alaska, Department of Revenue, "the residency requirement for PFD eligibility may differ from other residency requirements." Under former AS 48.23.095.8 "state resident" for the purpose of dividend eligibility meant:

an individual who is physically present in the state with the intent to remain permanently in the state under the requirements of AS 01.10.055 or, if the individual is not physically present in the state, intends to return to the state and remain permanently in the state under the requirements of AS 01.10.055, and is absent only for any of the following reasons:
(A) vocational, professional, or other specific education for which a comparable program was not reasonably available in the state;
(B) secondary or postsecondary education;
(C) military service;
(D) medical treatment;
(E) service in Congress;
(F) other reasons which the commissioner may establish by regulation; or
(G) service in the Peace Corps.

All of Schikora's 1992 and 1998 absences were for business or leisure, and therefore are not allowable absences. Likewise, Schi-kora's 1994 absences were disallowed for failure to substantiate his claimed medical absences. Furthermore, these absences in all three years exceeded the blanket allowance -provided by regulation at former 15 AAC 23.163(c)(15)(A), which permitted absences for any reason "consistent with the individual's intent to remain a resident provided the absence or cumulative absences do not exceed ... 180 days if the individual is not claiming any of the {[other allowable absences]." Schikora does not dispute that his reasons for being absent in 1992 and 1993 do not qualify as allowable absences under subparagraphs (A)-(G) of former AS 43.23.095(8) or its implementing regulations. Rather, he claims that he met AS 43.23.095(8)'s definition of "state resident" by being "physically present in the state with the intent to remain permanently in the state under the requirements of AS 01.10.055" on the date he applied for the disputed PFDs.

Schikora contends that, by being a state resident on his date of application, he satisfied former AS 48.28.005(a)(2), which makes an individual eligible for.a PFD only if "on the date of application the individual is a state resident...." Although Schikora acknowledges that former AS 43.28.005(2)8) further conditioned eligibility on an applicant's being "a state resident for at least the calendar year immediately preceding January 1 of the current dividend year," he reasons that he met this requirement because he had been an Alaska resident since 1945. Characterizing subparagraph (a)(8) as merely a "durational residency requirement for the issuing of the first dividend," Schikora insists that this provision did not literally require him to be present or excusably absent throughout the calendar year immediately preceding his application. Therefore, Schi-kora argues, the allowable absence provisions of former AS 48.28.095(8) are irrelevant to his case.

But Schikora's reasoning is unpersuasive. As the superior court found, his argument underestimates AS 48.23.0058 requirements:

While it is true ... that the allowable absence provisions of AS 48.28.095(8) do not apply to an individual who is physically present in the state with the requisite intent on the date of application under AS 4[3].23.005(a)(2), the allowable absence provisions may apply to the same individual under paragraph (a)(8) of the same statute. The statute requires that, in order to qualify for a dividend, the individual must also be a state resident for at least the calendar year preceding the application period. Applying the definition of "state resident" to paragraph (a)(8) creates the requirement that the individual be physically present in the state with the requisite intent for the calendar year or absent from the state with the requisite intent for an allowable reason. Since Schikora was not physically present for the entire qualifying period for any of his PFD applications in question, then he must account for his absences to determine if those absences are allowable to maintain his eligibility for the annual dividend. This is true even if his residency was an established fact in previous years.

As interpreted by the superior court, sub-paragraphs (a)(2) and (a)(8) work in tandem and serve complementary goals: by requiring an applicant to be a resident upon applying for the dividend, subparagraph (a)(2) addresses the issue of current residency, thereby ensuring individuals who are no longer current residents cannot apply for PFDs; and by also requiring the applicant to be a resident for the full calendar year immediately preceding the application, sub-paragraph (a)(8) addresses the issue of residency during the year for which the applicant asks to be paid, thereby ensuring that each year of payment reflects a full year of residency, that is, either actual presence within the state or allowable absence.

In our view, the superior court's reading of these provisions is sensible and correct. Schikora offers no convincing argument against this reading. First, he argues that construing AS 48.28.005(a)(8) to require longtime residents to live continuously in the state for the year preceding each application would render AS 48.23.005(a)(d) redundant. Subparagraph (a)(4) requires an applicant to be "physically present in the state at some time during the prior two calendar years before the current dividend year[.]" Schiko-ra reasons that there would be no need for this language if subparagraph (a)(8) required physical presence during the year preceding the dividend.

But Schikora's reasoning fails to acknowledge that under the allowable absences provisions of former AS 48.28.095(8) an applicant could be Outside for many years, yet still meet subparagraph (a)(8)'s prior-year continuous residency requirement. For example, a student who leaves the state to attend a four-year college could conceivably claim four years of continuous residency under subpara-graph (a)(8) without ever returning to Alaska. Subparagraph (a)(4) deals with this possibility by ensuring that those who spend long periods outside the state on allowable absences maintain some physical contact with Alaska. Because this provision would continue to serve as a needed backstop controlling the abuse of long-term, allowable absences, the superior court's interpretation of subpar-agraph (a)(8) does not render subparagraph (a)(4) redundant..

Schikora's second argument is that the legislative history of the dividend program supports his interpretation of subpara-graph (a)(8). On the contrary, the legislative history supports the department's position. The original PFD act connected PFD eligibility to state residency during the six months that preceded the application.

See. 48.28.005. ELIGIBILITY. (a) An individual is eligible to receive one permanent fund dividend each year [if] on the date of application the individual (1) is a state resident; and (2) has been a state resident for a period of at least six consecutive months immediately preceding the date of application.

This language conclusively demonstrates that the legislature intended to base PFD eligibility on recent history of residency rather than on residency in the remote past. Therefore, we find that the superior court correctly interpreted former AS 43.28.005 as it applied to Schikora.

C. Schikora's Regulation Promuilgation Argument

Schikora next argues that, because of procedural errors in its promulgation, 15 AAC 28.163 was not properly adopted and must be invalidated. That regulation is the source of the 180-day rule, which allows Alaskans 180 days of absence from the state without jeopardizing their PFD eligibility.

Assuming Schikora is correct and the department's regulations were improperly adopted, invalidating them would not help his case. The 180-day rule liberalizes the absences otherwise permitted under former AS 43.28.095(8). If we agreed with Schikora and suspended that rule, he still would not qualify for the disputed dividends because his absences were not among those allowed by statute. Therefore, because Schikora seeks a remedy that would not help his case, his regulatory arguments are moot.

D. Constitutional Claims

We recently decided Church v. State, Department of Revenue, a case that disposes of Schikora's first two constitutional claims. In Church, an Alaskan left the state for 274 days to care for a dying relative. Like Schikora, Church claimed that the PFD rules denied him due process of law and denied him equal protection under the Fourteenth Amendment. As in Church, we find no merit to those claims. Furthermore, Schikora's commerce clause argument has no merit.

1. The PFD regulations do not deny Schikora due process of law.

Schikora argues that "the regulations as applied seek to deny Schikora his residence status and therefore his PFD solely because he exercised his fundamental right to travel." We addressed this issue squarely in Church. There, we found that there was "no violation of Church's right to travel" caused by applying the PFD residency test.

The infringement on Church's right to travel is relatively small and would not be likely to deter a person from traveling. An applicant has no vested property right in a permanent fund dividend and should not expect to receive a dividend if he doesn't meet the qualifications. Additionally, ... the regulations and statutes in question bear a fair and substantial relationship to the state's legitimate objective of efficiently awarding PFDs only to permanent residents.

Schikora fails to distinguish or even consider Church, which we find to be exactly analogous to this case. Nothing in his recapitulation of due process principles rebuts the Church precedent. Schikora's due process rights were not denied.

2. The PFD regulations do not deny Schikora equal protection.

Schikora claims that the PFD regulations deny him equal protection. We review equal protection claims on a sliding seale, invoking closer scrutiny for more important interests. In Church we found that "PFDs represent an economic interest" and that "[elqual protection claims concerning their denial are reviewed under minimum serutiny. ** Furthermore, we held that "even though an equal protection claim to a PFD involved the right to travel, it did not necessarily trigger heightened scrutiny. * Thus, the question in Church was whether the 180-day rule was "designed to achieve a legitimate governmental objective," and whether its means "bear a 'fair and substantial relationship to the accomplishment of that objective.

We concluded that the objective of the 180-day rule-'"to ensure that only permanent residents receive dividends" -is legitimate. Further, "allowing only enumerated excusable absences unless a person has been in the state more than half a year bears a fair and substantial relationship to ensuring that the dividend goes only to permanent residents." Therefore, we affirmed the PFD denial in Church Schikora offers no reason to distinguish his case from this direct precedent and we see none; the 180-day rule did not deny him equal protection.

3. Schikora's commerce clause claim is misplaced.

Schikora's last constitutional argument is that the 180-day rule violates the interstate commerce clause. Specifically, he argues that by conditioning his receipt of a PFD on 180 days of physical presence in Alaska, the PFD statute and its regulations "prohibit[ed] interstate travel and therefore commerce." Since the regulation of interstate commerce is Congress's sole purview under the commerce clause, Schikora argues that the denial of his PFD was beyond the state's power.

In Pike v. Bruce Church, Inc., the United States Supreme Court described this general rule for determining the validity of state statutes that affect interstate commerce:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Schikora does not claim, nor do we see, any way in which PFD residency requirements regulate interstate commerce directly. Thus, whatever effect the PFD statute may have on interstate commerce is incidental to the state's legitimate goal of issuing PFDs to bona fide Alaska residents only. Schikora's claims that the PFD eligibility regulations "prohibit" or "have a chilling effect" on interstate travel are entirely conclusory and unsubstantiated in the record. In contrast, the benefits of accurately distributing PFDs to bona fide residents are obvious and are supported by precedent. Balancing the benefits of an accurate PFD regime against the unsubstantiated, incidental burdens on interstate commerce leads us to conclude that the state's scheme for granting PFDs on the basis of demonstrated residency must be upheld.

Furthermore, in Carlson v. State Commercial Fisheries Entry Commission, we recognized the difference between financial burdens predicated on interstate commerce and those predicated on residency. In Carison, we upheld a commercial fishing license system that charged out-of-state fishers three times what locals were charged. In doing so, we refused to analyze the fee differential under the dormant commerce clause because the fees did not involve the flow of articles in commerce.

[TJhe fee differentials at issue in this case are not predicated upon the movement of articles of commerce across state lines, but rather upon the residency status of those applying for permits. The Supreme Court has consistently analyzed statutes which purportedly classify on the basis of residency under the Privileges and Immunities or the Equal Protection Clauses.

As in Carlson, the classification in the present case turns on residency rather than the flow of commerce across state lines. For these reasons, we find no violation of the commerce clause.

E. The Factual Findings

Schikora's last points on appeal concern the factual basis for the hearing officer's decision to withhold the disputed PFDs. Schikora's arguments are based on his legal interpretation of how PFD residency is defined, an interpretation we have rejected. Under the residency definition at former AS 43.23.095(8), the hearing officer's decision should be upheld if there was substantial evidence to support a finding that Schikora was absent from the state for more than 180 days without a reason allowed by statute or regulation. Since Schikora does not dispute that his absences in 1992 and 1998 were for business and lefisure-neither of which qualify as allowable absences-and since he does not dispute that those absences totaled more than 180 days, we find that there was substantial evidence in the record to support the denials.

Likewise, the facts concerning Schi-kora's 1994 dividend were not disputed. Schikora admitted to the length and nature of the medical treatments he underwent in 1994. It was not disputed that his days in treatment totaled less than a week and that he spent 235 days outside Alaska. Thus, as a matter of law, the hearing officer could find that Schikora did not meet the definition of "state resident" in former AS 48.23.0958). Summary judgment was appropriate.

IV. CONCLUSION

The decision of the superior court is AFFIRMED.

      . See 15 AAC 23.163(c)(15)(A) (1993).

      . Schikora reported these 1992 qualifying year absences:
      Feb. 27, 1991-May 14, 1991
      (75 days for business reasons)
      May 24, 1991-June 11, 1991
      (18 days for vacation)
      Aug. 18, 1991-Sep. 1, 1991
      (14 days for vacation)
      Nov. 1, 1991-Dec. 2, 1991
      (31 days for vacation)
      Jan. 2, 1992-Mar. 31, 1992
      (89 days for business reasons)
      For 1993, he reported these absences:
      Jan. 2, 1992-May 20, 1992
      (138 days for business)
      June 12, 1992-June 27, 1992
      (15 days for family visit)
      Oct. 12, 1992-Dec. 10, 1992
      (59 days for vacation)
      For 1994, he reported these absences:
      Jan. 1, 1993-June 3, 1993
      (153 days claimed medical)
      Aug. 2, 1993-Aug. 27, 1993
      (25 days claimed medical)
      Oct. 18, 1993-Dec. 16, 1993
      (57 days business/vacation)

      . Schikora applied on June 30, 1992, from Fairbanks; June 29, 1993, from Fairbanks; and Jan. 6, 1994, from Fairbanks.

      . There were statutory and regulatory changes between 1992 and 1993, but Schikora's arguments are based on statutory elements that did not change.

      . See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).

      . See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127 (Alaska 1999) (citing Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)). We went on to explain:
      We apply the substitution of judgment standard to issues of law not involving agency expertise, such as statutory interpretation and constitutional claims. See Madison v. Alaska Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska 1985). However, this court "will not substitute [its] judgment for that of the agency with respect to the efficacy of [a] regulation nor review the 'wisdom' of a particular regulation." State, Dep't of Revenue v. Costo, 858 P.2d 621, 624 (Alaska 1993) (citing Alaska Int'l Indus. v. Musarra, 602 P.2d 1240, 1245 n. 9 (Alaska 1979)).
      Id. (alteration in original).

      . This court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The [agency's] decision need not be the only possible solution to the problem, for it is not the function of the court to reweigh the evidence or choose between competing inferences, but only to determine whether such evidence exists." Bostic v. State, Dep't of Revenue, Child Support Enforcement Div., 968 P.2d 564, 567 (Alaska 1998) (quoting Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974) (alteration in Bostic }).

      . AS 01.10.055 reads:
      (a) A person establishes residency in the state by being physically present in the state with the intent to remain in the state indefinitely and to make a home in the state.
      (b) A person demonstrates the intent required under (a) of this section
      (1) by maintaining a principal place of abode in the state for at least 30 days or for a longer period if a longer period is required by law or regulation; and
      (2) by providing other proof of intent as may be required by law or regulation, which may include proof that the person is not claiming residency outside the state or obtaining benefits under a claim of residency outside the state.
      (c) A person who establishes residency in the state remains a resident during an absence from the state unless during the absence the person establishes or claims residency in another state, territory or country, or performs other acts or is absent under circumstances that are inconsistent with the intent required under (a) of this section to remain a resident of this state.

      . 900 P.2d 728, 733 n. 12 (Alaska 1995) (quoting the Department of Revenue's explanation that "{elligibility for PFDs includes meeting a definition of residency tied to physical contact to the state, which may be more difficult to meet than the definition of residency for other purposes").

      10. Former AS 43.23.095(8). That statute also allowed the department to create additional allowable absences by regulation. Under this authority, the department promulgated 15 AAC 23.175(d)(1992) and 15 AAC 23.163(c)(1993). Those catchall regulations allowed Alaskans who spent time Outside to receive a PFD if: (1) the reason for their absence was consistent with an intent to remain a resident, (2) they did not claim one of the specific allowable absences (e.g., military service, education}, and (3) their cumulative absences in the qualifying year totaled no more than 180 days. This is often referred to as the 180-day rule.

      . Former 15 AAC 23.163(c)(15)(A).

      12. Schikora v. State, 4FA-96-2756 CI, Opinion at 10-11 (Alaska Super., January 14, 1999) (footnote omitted).

      . Ch. 102, SLA 1982.

      14. Id. (emphasis added).

      . Because we uphold the superior court's interpretation, we need not consider Schikora's claim that the department's implementing regulations are inconsistent with Schikora's interpretation of the statute.

      . See 15 AAC 23.163(c)(15)(A).

      . 973 P.2d 1125 (Alaska 1999).

      . See id. at 1127.

      19. Id. at 1131 (citations omitted).

      . State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978).

      . Church, 973 P.2d at 1130.

      . Id. (citing Brodigan v. Alaska, Dep't of Revenue, 900 P.2d 728, 734 n. 13 (Alaska 1995)).

      . Id.

      . Id.

      . Id. at 1130-31.

      . U.S. Const. art. I, § 8.

      27. 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

      . See Church, 973 P.2d at 1130 (holding that accurate distribution of PFDs is a legitimate state purpose supported by a statutory and regulatory scheme that bears a fair and substantial relationship to achieving that purpose).

      . 919 P.2d 1337 (Alaska 1996), cert. denied, 519 U.S. 1101, 117 S.Ct 789, 136 L.Ed.2d 730 (1997).

      30. Id. at 1340-41. Our decision in Carlson suggests that Schikora's claim could be considered under the Privileges and Immunities Clause. Schikora failed to brief such a claim, but even if he had, that approach would be unavailing. The PFD applicant's "burden" of being physically present in Alaska for more than 185 days per year is borne equally by all applicants, regardless of their recent previous state citizenship. Cf. Saenz v. Roe, 526 U.S. 489, 504-06, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (overturning California law that limited recent entrants to the state to the welfare benefits they could have received in the state they came from for one year). Moreover, as discussed in our due process and equal protection PFD decisions, (see, e.g., Church, 973 P.2d at 1129-32), the purpose of that "burden" is to fairly distinguish the residential intent of those who seek PFDs. Since PFDs are cash payments, unrelated to any condition other than residency, they are the kind of "readily portable benefit" for which states may apply durational residency requirements to establish an applicant's "bona fide" intent to be a state resident. See Saenz, 526 U.S. at 504-05, 119 S.Ct. 1518. Similar situations are presented by residency requirements related to the receipt of in-state tuition benefits. "The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but have come there solely for educational purposes, cannot take advantage of the in-state rates." Vlandis v. Kline, 412 U.S. 441, 453-54, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (emphasis added). Alaska has a similar, legitimate interest in seeing that only permanent residents receive PFDs.