author: HILL, Justice.

text:
    2002 WY 86
    Anthony Dustin HANKINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-124.
    Supreme Court of Wyoming.
    June 6, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling and Robin Sessions Cooley, Senior Assistant Attorneys General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   HILL, Justice.

[¶ 1] Appellant, Anthony Hankinson (Hankinson), was convicted of conspiracy to commit aggravated assault and battery. He submits this appeal contending that there is not sufficient evidence to sustain the convietion. We will affirm.

ISSUE

[¶ 2] The only issue presented for our review is whether or not sufficient evidence is present to sustain Hankinson's conviction, although it is couched in terms of possible abuse of discretion by the district court in denying his motion for judgment of aequit-tal, which was made after all evidence had been received, including Hankinson's testimony.

FACTS

[¶ 3] Our recitation of the facts pertinent to the resolution of the issue raised in this appeal need only be very brief. Hankinson and Lester Poague got drunk on July 25, 2000. They decided to go to the business owned by Daryl Coast (Coast) and give him a beating, because of grievances against Coast, real or imagined, the details of which are not pertinent to this appeal and which Hankinson was unable to articulate in a manner that made much sense. After drinking most of the day, Hankinson and Poague went to Coast's place of business and broke in the door. Onee inside, they looked for Coast because they wanted to "kick his ass." Because Coast was a much bigger man than Poague, Poague had armed himself with an axe handle from Hankinson's pickup truck. According to both Hankinson and Poague, Hankinson's main purpose in being there was to make sure his brother did not enter into the fight on Coast's side. Hankinson's broth, er was a good friend of Coast's. However, Coast was not at his business, so the two vandals scattered business papers and about two or three hundred pennies from a cash box onto the counter and the floor, poured fingernail polish on a credit card machine, and Hankinson defecated on the floor. As the two were leaving, Hankinson took a coffee can, which was used as an ashtray for the business (and the can apparently contained a few of the pennies which were strewn about the business), and threw it- into the back of his pickup truck, along with the empty bottle of fingernail polish. Hankinson took those two items because he thought his fingerprints might be on them.

[¶ 4] Hankinson subsequently was charged with burglary with intent to commit aggravated assault and battery on the person of Coast, burglary with intent to commit larceny, based on the removal of the coffee can and some of the pennies, as well as the conspiracy charge described above.

[¶ 5] The jury found Hankinson not guilty on the two burglary charges, but guilty of the conspiracy charge.

STANDARD OF REVIEW

[¶ 6] The benchmark for review of sufficiency of the evidence claims is whether the evidence, when viewed in the light most favorable to the State, is such as to permit a reasonable trier of fact to find guilt beyond a reasonable doubt. Statezny v. State, 2001 WY 22, ¶ 15, 18 P.3d 641, ¶ 15 (Wyo.2001). Moreover, we will not substitute our judgment for that of the jury. Rather, we determine whether a quorum of reasonable and rational individuals would, or even could, have found the essential elements of the crime were proven beyond a reasonable doubt. Saiz v. State, 2001 WY 76, ¶ 17, 30 P.3d 21, ¶ 17 (Wyo.2001).

DISCUSSION

[¶ 7] The central thrust of Han-kinson's appeal is that he was too drunk to have formed the specific intent to conspire with Poague in the first place and, to the extent they discussed a "plan" to beat up Coast using the axe handle, it did not rise to the level of a conspiracy, as that word is viewed in the context of the criminal law. Conspiracy is defined as follows in Black's Law Dictionary 305 (7th ed.1999):

Conspiracy, n. An agreement by two or more persons to commit an unlawful act; a combination for an unlawful purpose. In criminal law, conspiracy is a separate offense from the crime that is the object of the conspiracy....
“[Conspirac°y is an] elastic, sprawling and pervasive offense, ... so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition because it consists primarily of a meeting of minds and an intent." Krulewitch v. United States, 336 U.S. 440, 445-48, 69 S.Ct. 716, 719-20, 93 L.Ed. 790 (1949) (Jackson, J., concurring).

[¶ 8] In Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977), we defined a conspiracy as an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts are performed to further the unlawful design. Also see Phillips v. State, 835 P.2d 1062, 1067-68 (Wyo.1992). Conspiracy is a specific intent crime and is commonly defined as an agreement between two or more persons to commit an unlawful act. Under widely adopted statutory concepts, a conspiracy is completed when an agreement has been made and some overt act is performed in furtherance of the conspiracy. The agreement that must be shown to support a conviction of a conspiracy to commit a crime is not the same as the "meeting of the minds" demanded for a contract. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words, which expressly communicates agreement. Wehr v. State, 841 P.2d 104, 109-10 (Wyo.1992); Rands v. State, 818 P.2d 44, 46 (Wyo.1991); Bigelow v. State, 768 P.2d 558, 562 (Wyo.1989); also see Burk v. State, 848 P.2d 225, 234-35 (Wyo.1998). Wyoming has adopted the unilateral theory of conspiracy and, thus, a person who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person, in fact, has agreed to commit the crime. Miller v. State, 955 P.2d 892, 897-98 (Wyo.1998). The jury was properly instructed with respect to conspiracy:

In determining whether a conspiracy existed, the jury should consider the acts and declarations of all the alleged participants. However, in determining whether a particular defendant was a member of the conspiracy, if any existed, the jury should consider only his acts and statements. He cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that he was one of its members.
While conspiring involves an agreement to violate the law, it is not necessary that the persons charged met together and entered into an express or formal agreement, or that they stated in words or writing what the scheme was or how it was to be effected. It is sufficient to show that they came to a mutual understanding to commit the crime.
If it is established beyond a reasonable doubt that a conspiracy existed and that the Defendant was one of its members, then the acts and declarations of any other member of such conspiracy in or out of such Defendant's presence, done in furtherance of the objects of the conspiracy, and during its existence, may be considered as evidence against such Defendant. When persons enter into an agreement to commit a crime, they become agents for one another.
When two individuals are associated throughout an entire eriminal enterprise, it is not necessary to prove that each of them did that which was necessary to establish each element of an offense; it is sufficient to show that they were associated together in doing that which comprises each element of the offense.

[¶ 9] The trial court also properly instructed the jury on the law pertaining to the cireumstances under which a person charged with a specific intent crime may defend on the basis of voluntary intoxication. Wyo. Stat. Ann. § 6-1-202 (LexisNexis 2001), W.P.J.L.Cr. 8.18 (1996); Brett v. State, 961 P.2d 385, 891-92 (Wyo.1998); and see Dice v. State, 825 P.2d 379, 882-83 (Wyo.1992); and R.W. Gascoyne, Annotation, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R.3d 1236, esp. § 4 (1966 and Supp.2001). The instruction given was this:

Evidence has been introduced tending to show that the Defendant was suffering from self-induced intoxication. Self-induced intoxication is a defense to the crimes charged if the Defendant was intoxicated to such a degree that he was unable to formulate the intention to commit the erimes, or to form an agreement to commit these crimes. Intoxication is self-induced if it is caused by substances which the Defendant knows or ought to know have the tendency to cause intoxication and which he knowingly and voluntarily introduced into his body. The fact that the Defendant was dependent upon the intoxicating substance is not relevant in determining whether his intoxication was self-induced. Accordingly, if you find that the Defendant, at the time of the crimes charged, was suffering from self-induced intoxication to such a degree that there is a reasonable doubt in your minds whether the Defendant possessed the mental ability to form the intention to commit the crimes charges, then you should find the Defendant not guilty.
Self-induced intoxication is a defense to the crimes charged if the Defendant was intoxicated to such a degree that he was unable to formulate the intention to commit the erimes, or to form an agreement to commit these crimes.
Intoxication is self-induced if it is caused by substances which the Defendant knows or ought to know have the tendency to cause intoxication and which he knowingly and voluntarily introduced into his body. The fact that the Defendant was dependent upon the intoxicating substance is not relevant in determining whether his intoxication was self-induced.
Accordingly, if you find that the Defendant, at the time of the crimes charged, was suffering from self-induced intoxication to such a degree that there is a reasonable doubt in your minds whether the Defendant possessed the mental ability to form the intention to commit the crimes charges, then you should find the Defendant not guilty.

[¶ 10] Whether or not Hankinson was so drunk that he could not form the requisite specific intent, and whether Han-kinson actually engaged in a conspiracy to commit the crime of aggravated assault and battery on Coast, were questions for the jury. There was evidence that suggested that Hankinson was relatively lucid on the night of the crime. During the crimes, Han-kinson had to make decisions and take actions that required some presence of mind and volition, even if those actions were only the basest form of stupidity. In light of this evidence, the jury could reasonably have inferred that Hankinson acted with specific intent, even though there was a great deal of evidence to indicate that Hankinson was very drunk and, in his own testimony, he claimed to be in an alcoholic blackout at the time. Likewise, though the agreement that Poague and Hankinson made to assault Coast was crude and ill conceived, the jury could reasonably have inferred that a conspiracy was present. Hankinson's argument focuses on his own view of the facts, rather than that view which might have been taken by reasonable jurors.

[¶ 11] Finally, Hankinson contends that the jury's verdicts are so inconsistent that they cannot stand. We do not agree. In this regard, Hankinson contends that the jury determined there was not evidence that he had the intent to commit burglary, and, therefore, he could not have the intent necessary to engage in a conspiracy either, The jury might well have decided that Hankinson did not intend to commit burglary, though that is speculation. However, the jury could, and did, infer from all of the evidence that Hankinson conspired with Poague to assault Coast, even though it was obvious to all that their efforts in that regard were, fortunately, in vain. -In several instances, this Court has said that consistency in a jury's verdict is not necessary. Eatherton v. State, 810 P.2d 93, 98 (Wyo.1991); Lessard v. State, 719 P.2d 227, 230-32 (Wyo.1986). Professor Wright states the rule in his treatise as follows:

In a case in which there are multiple counts, each one is treated as if it were a separate indictment. The verdict on the various counts need not be consistent. An acquittal on one count does not prevent conviction on another, even though the evidence is the same and defendant could not have committed one crime without committing both, so long as the evidence is sufficient to support conviction on the count on which a guilty verdict was reached.

Doud v. State, 845 P.2d 402, 407 (Wyo.1993) (quoting 3 Charles Alan Wright, Federal Practice and Procedure § 514 at 14-16 (1982)).

[¶ 12] The Judgment and sentence of the district court are affirmed.

      . Wyo. Stat. Ann. § 6-1-303 (LexisNexis 2001) states:
      § 6-1-303. Conspiracy; criminal intention; venue. renunciation of
      (a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
      (b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under circumstances manifesting voluntary and complete renunciation of his criminal intention.
      (c) A conspiracy may be prosecuted in the county where the agreement was entered into, or in any county where any act evidencing the conspiracy or furthering the purpose took place.

      . Wyo. Stat, Ann. § 6-2-502 (LexisNexis 2001) states:
      § 6-2-5022. Aggravated assault and battery; penalty.
      (a) A person is guilty of aggravated assault and battery if he:
      (i) Causes serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
      (if) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;
      (iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another; or
      (iv) Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant.
      (b) Aggravated assault and battery is a felony punishable by imprisonment for not more than ten (10) years.

      . W.R.Cr.P. 29 states:
      Rule 29. Motion for judgment of acquittal.
      (a) At close of evidence.-Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the state is not granted, the defendant may offer evidence without having reserved the right.
      (b) Reservation of decision.-If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns the verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
      (c) After discharge of jury.-If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix during the 10 day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal within 10 days after such motion is filed, and if not so entered shall be deemed denied, unless within such 10 days the determination shall be continued by order of the court, but a continuance shall not extend the time to a day more than 30 days from the date the verdict is returned. If no verdict is returned, the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
      (d) Conditional ruling on motion for new trial.-If a motion for judgment of acquittal after verdict of guilty under this rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the ap-pellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

      . Wyo. Stat. Ann. § 6-3-301 (LexisNexis 2001) states:
      § 6-3-301. penalties. Burglary; aggravated burglary;
      (a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.
      (b) Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both. 200.
      (c) Aggravated burglary is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years, a fine of not more than fifty thousand dollars ($50,000.00), or both, if, in the course of committing the crime of burglary, the person:
      (i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
      (ii) Knowingly or recklessly inflicts bodily injury on anyone; or
      (Hii) Attempts to inflict bodily injury on anyone.
      (d) As used in this section "in the course of committing the crime" includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred.

      . Wyo. Stat. Ann. § 6-1-202 (LexisNexis 2001) states:
      § 6-1-202. Being under the influence not a defense; effect upon intent; "self-induced."
      (a) Selfinduced intoxication of the defendant is not a defense to a criminal charge except to the extent that in any prosecution evidence of self-induced intoxication of the defendant may be offered when it is relevant to negate the existence of a specific intent which is an element of the crime.
      (b) Intoxication is self-induced if it is caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he knowingly and voluntarily introduced or allowed to be introduced into his body unless they were introduced pursuant to medical advice. The fact that the defendant is dependent upon the intoxicating substance is not relevant in determining whether his intoxication is self-induced.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    AVCP REGIONAL HOUSING AUTHORITY, Appellant, v. R.A. VRANCKAERT COMPANY, INC.; Kuukpik Corporation; and R.A. Vranckaert Company, Inc./Kuukpilk Corporation Joint Venture, Appellees. R.A. Vranckaert Company, Inc.; Kuukpik Corporation; and R.A. Vranckaert Company, Inc./Kuukpik Corporation Joint Venture, Petitioners, v. AVCP Regional Housing Authority, Respondent.
    Nos. S-9872, S-9893.
    Supreme Court of Alaska.
    May 17, 2002.

      Tracy L. Knutson, Sisson & Knutson, P.C., Anchorage, for Appellant and Respondent.
    Roger F. Holmes, Biss & Holmes, Anchorage, for Appellees and Petitioners.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Two groups of tenants, the Nilsson plaintiffs and the Emgler plaintiffs, sued their landlord, the Association of Village Council Presidents Regional Housing Authority (AVCP), for injuries caused by exposure to carbon monoxide emissions from their gas ranges. The contractor, R.A. Vranckaert Company, had forgotten to convert the stoves from natural gas to propane before turning the housing project over to AVCP.

After settling with the Nilsson plaintiffs, AVCP moved to amend its third-party complaint against Vranckaert to include a claim of equitable indemnity. Superior Court Judge Dale 0. Curda denied the motion and dismissed AVCP from the action. Rather than appealing, AVCP filed a new action against Vranckaert asserting various indemnity claims. Based on Judge Curda's order, Superior Court Judge Karen L. Hunt ruled that these claims were barred by the doctrine of res judicata.

The Engler plaintiffs then sued both AVCP and Vranckaert. AVCP asserted the same indemnity claims in its third-party complaint against Vranckaert. Superior Court Judge Niegje J. Steinkruger granted Vranck-aert summary judgment on the claims of express contractual indemnity and passive negligence, but denied summary judgment on the claims of implied contractual indemnity, breach of contract, and negligence.

We affirm the decisions of Judge Stein-kruger and Judge Hunt granting summary judgment in Vranckaert's favor on AVCP's claim of passive negligence. We also affirm Judge Steinkruger's decision granting summary judgment in Vranckaert's favor on AVCP's claim of express contractual indemnity. But we reverse Judge Steinkruger's decision on AVCP's claim of implied contractual indemnity because Vranckaert is entitled to judgment as a matter of law on that claim. In addition, to the extent that the breach of contract and negligence claims seek implied contractual indemnification for amounts that AVCP paid in settlement to the two groups of plaintiffs or for AVCP's defense costs in that litigation, we conclude that Vranckaert is entitled to judgment in its favor.

II. FACTS AND PROCEEDINGS

In 1991 Vranckaert installed gas kitchen ranges in twelve apartments under a contract with AVCP to construct new low-income housing units in Bethel. For purposes of this proceeding, Vranckaert admits that its workers failed to properly fit the stoves for propane gas. Beginning in August 1992, tenants made numerous complaints to AVCP about the stoves and ovens not working properly. Between May 1994 and September 1997 AVCP received thirty-five service requests from ten apartments relating to problems with the stoves and ovens. AVCP generally responded to these complaints by repairing the stove or oven in question.

In October and November 1995 several tenants from different apartments called the Bethel Fire Department complaining of nausea and headaches and reporting gas odors and sounding carbon monoxide alarms. The fire department directed AVCP to repair the gas leaks on November 22, 1995, after it found excessive carbon monoxide levels in several apartments. AVCP's executive director, Don Fancher, agreed to install proper gas orifices in the stoves and carbon monoxide detectors in each apartment by the following day.

On December 1, 1995, after receiving additional calls regarding possible gas leaks from tenants, the fire chief wrote a second letter to Fancher, stating that the fire department had received three calls from the same apartment reporting unsafe carbon monoxide levels and had heard no word from AVCP regarding replacement of the orifices. It is unclear when or if AVCP replaced the orifices. Through 1997 tenants continued to report strong propane odors, problems with the operation of their stoves, and sounding carbon monoxide alarms.

Tenants known as the Nilsson plaintiffs sued AVCP, claiming injury as a result of exposure to carbon monoxide. AVCP then filed a third-party complaint against Vranck-aert, alleging that Vranckaert had "negligently installed propane stoves" and seeking equitable apportionment of damages. AVCP settled with the Nilsson plaintiffs after mediation. The Nilsson plaintiffs were granted leave to amend their complaint to assert a direct cause of action against Vranckaert after they discovered that Vranckaert had insurance coverage. Vranckaert subsequently settled with the Nilsson plaintiffs.

AVCP then sought to amend its third-party complaint against Vranckaert to include a claim of equitable indemnity. Judge Dale O. Curda denied AVCP's motion to amend and dismissed AVCP from the Nils-son suit, reasoning that "as 'Alaska does not recognize non-contractual indemnity ...', AVCP-RHA has not asserted a viable cause of action. Tort Reform focuses on a relative allocation of the fault between the alleged tortfeasors." (Internal citations omitted.) Relying on Carriere v. Cominco Alaska, Inc., Judge Curda determined that a cause of action for implied indemnity does not exist under Alaska law.

Rather than appeal Judge Curda's decision, AVCP filed a new lawsuit against Vranckaert,. AVCP asserted claims of express contractual indemnity, implied contractual indemnity, indemnity for passive negligence, breach of contract, and negligence. Vranckaert moved for summary judgment. Judge Karen L. Hunt granted the motion on the ground that the new claims were barred by res judicata because Judge Curda had already decided the same indemnity claims. She reasoned:

Although the present complaint gives more detail about the underlying cireumstances, the events alleged by AVCP in this case are the same events plead by AVCP in its third-party complaint in the consolidated [Nilsson ] cases.... "[A] mere change in the legal theory asserted as a ground for recovery will not avoid the preclusive effect of [the] judgment.[]

AVCP appeals that decision.

We consolidated AVCP's appeal in the Nilsson case with Vranckaert's petition for review in the Engler case, which arose out of the following facts. A second group of tenants, the Engler plaintiffs, sued AVCP and Vranckaert after the Nilsson plaintiffs had settled their claims. The Engler plaintiffs asserted the same claims that the Nilsson plaintiffs had asserted: negligence, breach of contract, failure to maintain fit premises, strict liability, and breach of the implied warranty of habitability.

AVCP filed a third-party complaint and cross-claim against Vranckaert, asserting claims of express and implied contractual indemnity, indemnity for passive negligence, breach of contract, and negligence. These claims were identical to those which Judge Hunt ruled were barred by res judicata because of Judge Curda's decision. Vranckaert settled with the Emgler plaintiffs, and they released Vranckaert from liability. The Engler plaintiffs released AVCP from liability "only to the extent that AVCP-RHA may be vicariously liable" for the actions of Vranck-aert and its partners. AVCP subsequently settled with the Engler plaintiffs.

Vranckaert then filed a motion for summary judgment. -In ruling on AVCP's third-party complaint and eross-claim against Vranckaert in the Engler suit, Judge Niegje J. Steinkruger reached a different conclusion than Judge Hunt on the question of whether summary judgment should be granted on AVCP's indemnity claims. Relying on the doctrine of collateral estoppel rather than res judicata, Judge Steinkruger concluded that Judge Curda's decision did not bar the express and implied contractual indemnity claims. She reasoned that these claims are not identical to equitable indemnity because express and implied contractual indemnity require proof of a contract, whereas equitable indemnity does not. However, just as Judge Hunt had concluded, Judge Steinkruger ruled that the passive negligence claim was barred because it "is the same claim as the equitable indemnity claim brought in the Nilsson case, albeit [under] a different name."

Although Judge Steinkruger found that Judge Curda's decision did not preclude AVCP's express contractual indemnity claim, she ruled that Vranckaert was entitled to judgment as a matter of law on that claim. Judge Steinkruger denied summary judgment on the claims of implied contractual indemnity, breach of contract, and negligence.

The decisions of Judges Steinkruger and Hunt thus conflict on the issue of whether AVCP's claims of express and implied contractual indemnity, breach of contract, and negligence are barred by Judge Curda's decision. Judge Steinkruger permitted AVCP's claims of implied contractual indemnity, breach of contract, and negligence to go forward, in contrast to Judge Hunt's decision that all of AVCP's indemnity claims were barred by Judge Curda's decision. We granted Vranckaert's petition for review of Judge Steinkruger's ruling and consolidated it with AVCP's appeal from Judge Hunt's decision.

III, DISCUSSION

A. Standard of Review

The issues before us are (1) whether the doctrines of res judicata or collateral estoppel bar any of AVCP's claims; and (2) whether judgment as a matter of law is otherwise proper on any of AVCP's claims. We review a grant or denial of summary judgment de novo. A moving party is entitled to summary judgment if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. We are not bound by the reasoning articulated by the superior court and can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the superior court or the parties. "The applicability of estoppel principles to a particular set of facts is a legal question over which we exercise independent review."

B. The Doctrines of Res Judicata and Collateral Estoppel Bar AVCP's Claim of Passive Negligence.

Judge Hunt ruled that AVCP's five indemnity claims were barred by the doctrine of res judicata because Judge Curda had already decided the same claims. We have held that "[uJnder the doctrine of res judica-ta, a judgment in a prior action operates as a bar to a subsequent action if (1) the prior judgment was a final judgment on the merits, (2) a court of competent jurisdiction rendered the prior judgment, and (8) the same cause of action and same parties or their privies were involved in both suits."

Judge Steinkruger held that the doe-trine of collateral estoppel did not bar AVCP's express and implied contractual indemnity claims but did bar AVCP's passive negligence claim. Collateral estoppel or issue preclusion bars the relitigation of an issue where:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (8) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.[]

Both doctrines are "founded upon the principle that parties ought not to be permitted to litigate the same issue more than once and that when a right or fact has been judicially determined by a court of competent jurisdiction or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties." The earlier judgment in question here is Judge Curda's decision in the Bethel trial court denying AVCP's motion to amend its complaint to assert an equitable indemnity claim against Vrancekaert.

The parties do not dispute that the Bethel trial court is a court of competent jurisdiction, nor do they question whether Judge Curda's involuntary dismissal of AVCP is a final judgment. The crux of the dispute before us is whether the causes of action or issues before Judges Steinkruger and Hunt had already been litigated before Judge Cur-da.

Vranckaert argues that all five indemnity claims asserted by AVCP are barred by the doctrine of res judicata because they arise out of the same transaction as the equitable indemnity claim. Vranckaert maintains that AVCP's pleadings in Nilsson indicate that AVCP did not limit itself to claims of legal indemnity. Rather, Vranckaert argues, AVCP's motion to amend to include an equitable indemnity claim also contemplated claims of express and implied contractual indemnity, and Judge Curda ruled on those claims. Therefore, Vranckaert concludes, AVCP's contract-based indemnity claims are barred by res judicata.

We conclude that Judge Curda issued a final decision only on the merits of AVCP's equitable indemnity claim. In ruling that equitable indemnity is not a viable cause of action, Judge Curda distinguished the cases cited by AVCP in support of the viability of its equitable indemnity claim as relying on contract theory and equitable apportionment. Judge Curda quoted Benner v. Wichman, in which this court held that "despite our rejection of equitable indemnity in Vertecs, we certainly did not reject contractual indemnity." Judge Curda's citation of contractual indemnity cases to distinguish the equitable indemnity claim does not amount to a decision on the merits of the contract-based indemnity claims. We interpret Judge Curda's decision as merely noting that while contractual indemnity may constitute a viable cause of action in Alaska, equitable indemnity cannot. AVCP's use of the more general term "indemnity" in its pleadings does not alter our conclusion that Judge Curda ruled only on the merits of the equitable indemnity cause of action.

Judge Steinkruger was correct in concluding that AVCP's passive negligence claim was adjudicated by Judge Curda. She reasoned:

Since the claim for indemnity for passive negligence is the same claim as the equitable indemnity claim brought in the Nilsson case, albeit [under] a different name, the doctrine of collateral estoppel should bar this claim, because the claim was disposed of on its merits in a court of competent jurisdiction.

And counsel for AVCP conceded at oral argument before this court that AVCP's passive negligence claim was the same as the equitable indemnity claim that Judge Curda dismissed.

We also agree with Judge Stein-kruger that AVCP's express and implied contractual indemnity claims are not collaterally estopped because they do not require relit-igation of an issue identical to those issues resolved by Judge Curda. Express and implied contractual indemnity claims require proof of a contract to indemnify, whereas equitable indemnity is based on concepts of equity. Having concluded that only AVCP's equitable indemnity and passive negligence claims were adjudicated by Judge Curda, we now turn to an examination of whether summary judgment is proper on the other four elaims on any basis other than collateral estoppel or res judicata.

C. Vranckaert Is Entitled to Judgment as a Matter of Law on AVCP's Claims of Express Contractual Indemnity, Implied Contractual Indemnity, Breach of Contract, and Negligence.

1. Express contractual indemnity

Judge Steinkruger granted Vranck-aert summary judgment on AVCP's claim of express contractual indemnity. Judge Stein-kruger reasoned that the contract for the construction of the Bethel housing units between AVCP and Vranckaert does not unequivocally provide that Vranckaert agreed to indemnify AVCP for AVCP's own negli-genee:

[Paragraph 26 of the contract between Vranckaert and AVCPI] does not indicate, as AVCP asserts, that Vranckaert agreed to indemnify AVCP for AVCP's own negligence. ...
AVCP nonetheless asserts that there is still a genuine issue of material fact as to its negligence against the plaintiffs, and that it is likely a jury would allocate 100% of the fault to Vranckaert. While this may be a potential outcome, it does not change the fact that Vranckaert already settled with the plaintiffs for its negligence. Nor does it change the fact that AVCP has been released from vicarious liability for Vranckaert's actions.

We agree that Vranckaert is entitled to judgment on this claim as a matter of law.

In a construction contract, the unambiguous language of an indemnity clause as "reasonably construed" should be given effect. Where, as here, there is no dispute about the surrounding cireamstances of the contract, interpretation of the language of an indemnity clause is a question of law and appropriate to determine on summary judgment. Paragraph 26 of the contract between Vranckaert and AVCP provides that the "Contractor," Vranckaert, "shall be responsible for all damages to persons or property that occur as a result of its fault or negligence in connection with the prosecution of the work. ..." (Emphasis added.) This provision merely states that Vranckaert will be responsible for "its" own fault or negligence, not that it will indemnify AVCP if AVQP acts negligently. Because "its fault or negligence" qualified Vranck-aert's undertaking, the clause cannot be read to cover AVCP's negligence. We affirm Judge Steinkruger's order granting summary judgment to Vranckaert on the express indemnity claim.

2. Implied contractual indemnity

AVCP also alleges that Vranck-aert failed in its implied duty under the contract to perform the construction contract in a non-negligent manner. In Fairbanks North Star Borough v. Kandilk Construction & Associates, we concluded that an action for implied contractual indemnity rests on the principle that a contract to perform a service contains an implied promise: "1) the indem-nitor will perform the service in a proper manner, or 2) the indemnitor will discharge foreseeable damages resulting from improper performance, unless 3) the indemnitee's own participation in causing the damages precludes recovery." Implied contractual indemnity is grounded on the principle that "the indemnitor's agreement to perform a contract necessarily implies an obligation to perform in a proper manner and to discharge foreseeable damages resulting to the plaintiff as a result of its breach." It is not based on equitable considerations.

In Vertees Corp. v. Reichhold Chemicals, a case that predates the current several liability statute, we held that Alaska does not recognize a cause of action for implied indemnity between concurrently negligent tort-feasors. We rejected Vertees's argument that "the common law would allow indemnity in any situation wherein one tortfeasor's conduct was not as blameworthy as another's and it would be just and fair as between the parties that the entire loss fall upon the indemnitor. We determined that adoption of Vertees's position would impose on courts the difficult task of determining what cases justify implied indemnity among concurrently negligent tortfeasors, would undermine the modern tort law goal of having each tortfeasor pay for the damages attributable to its own tortious acts, would discourage settlement, and would be judicially inefficient. The same public policy considerations dictate our conclusion that AVCP may not recover on a theory of implied contractual indemnity from Vranckaert; the plaintiffs had fault-based claims pending against AVCP, and AVCP's settlement was to resolve a dispute about its own negligence rather than to extinguish Vranckaert's liability.

Section 22 of the Restatement (Third) of Torts: Apportionment of Liability (1999) supports our conclusion. It requires the in-demnitee to extinguish the liability of the indemnitor, by settlement or judgment, to collect indemnity. Section 22 provides:

(a) When two or more persons are or may be liable for the same harm and one of them discharges the lability of another in whole or in part by settlement or discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the plaintiff, plus reasonable legal expenses, if:
(1) the indemnitor has agreed by contract to indemnify the indemnitee, or
(2) the indemnitee
(i) was not lable except vicariously for the tort of the indemmitor or
(ii) was not liable except as a seller of a product supplied to the indemnitee by the indemnitor and the indemnitee was not independently culpable.

(Emphasis added.) Comment b to section 22 explains:

[AJn indemmitee must extinguish the liability of the indemmitor to collect indemnity. The indemnitee may do so either by a settlement with the plaintiff that by its terms or by application of law discharges the indemnitor from Hability or by satisfaction of judgment that by operation of law discharges the indemnitor from lability.

(Emphasis added.)

The theory behind these provisions is that the indemnitee has provided a benefit to the indemnitor by fully discharging the indemnitor's liability, making restitution appropriate. Such a benefit is conferred only if the indemnitee guarantees that the indemnitor is protected from further claims by the plaintiffs that the indemnitor is liable. To hold that a party must indemnify another while the party is still liable to the plaintiffs would lead to the unjust result that the indemnitor could face double liability. It would also eliminate any incentive for parties to settle since settlement would not limit the indemnitor's exposure. The Restatement (Third) of Torts: Apportionment of Liability § 22 and Comment b are consistent with AS 09.17.080, which provides for the apportionment of a damages award against a party according to the factfinder's allocation of that party's fault.

We conclude that AVCP's implied contractual indemnity claim must fail under our reasoning in Vertecs and under the Restatement (Third) of Torts § 22. To recover damages from Vranckaert on an implied contractual indemnity theory, AVCP must not itself have been liable, except vicariously, to the plaintiffs and must have obtained from the plaintiffs a release of liability for all direct claims that the plaintiffs had against Vranck-aert. AVCP did not pay the Engler plaintiffs to settle the Engler plaintiffs' claims against Vranckaert. Indeed, the record indicates that the Engler plaintiffs had already settled with Vranckaert and had released AVCP from any vicarious liability claims it was asserting. In their settlement agreement with Vranckaert, the Engler plaintiffs expressly reserved "all claims which have been made or which may in the future be made against [AVCP]." Only fault-based claims remained against AVCP at the time AVCP settled with the Engler plaintiffs. Therefore, the AVCP settlement included, at least in part, payment in consideration for the plaintiffs' release of claims relating to AVCP's own negligence.

Neither did AVCP's settlement with the Nilsson plaintiffs effect a settlement of the claims the Nilsson plaintiffs had against Vranckaert. The settlement agreement makes no mention of Vranckaert. The agreement clearly indicates that its purpose is to settle direct claims asserted by the plaintiffs against AVCP as a landlord: "Despite numerous tenant complaints and repeated warnings from the Bethel Fire Department, AVCP-RHA unreasonably and without justification failed to correct this problem in a timely manner." And even if AVCP had paid damages to the Nilsson plaintiffs for injuries caused by Vranckaert, AVCP failed to obtain a release of Vranck-aert's liability from the Nilsson plaintiffs.

Without a release of liability, Vranckaert was left exposed to pay directly to the plaintiffs its own share of the damages. Indeed, Vranckaert did subsequently settle with the Nilsson plaintiffs. If we were to conclude that Vranckaert must indemnify AVCP, Vranckaert would pay twice for the same injuries to the same plaintiffs. Because AVCP failed to obtain a release of liability for Vranckaert and because AVCP's settlements with both groups of plaintiffs only discharged AVCP's own share of fault, AVCP is not entitled to implied contractual indemnity.

3. Negligence and breach of contract

AVCP argues that its negligence and breach of contract claims against Vranckaert are not precluded because they were not resolved by Judge Curda and are independent of its indemnity claims. Vranckaert responds that these two causes of action are indemnity claims in disguise. Therefore, Vranckaert maintains, the claims are subject to dismissal on summary judgment.

A review of AVCP's third-party complaint and its cross-claim against Vranckaert in the Emgler suit reveals that AVCP apparently seeks damages only in the amount that it paid in settlement to the plaintiffs and for the fees and costs it incurred in defending against the Nilsson plaintiffs' claims. AVCP's prayer for relief in its cross-claim states in full:

1. For indemnification from defendants Vranckaert/Kuukpik for any damages awarded to plaintiffs against AVCP-RHA;
2. For indemnification from defendants Vranckaert/Kuukpik for any settlement amount paid to plaintiffs as a result of plaintiffs' claims against AVCP-RHA;
3. For indemnification from defendants Vranckaert/Kuukpik for all fees and costs incurred by AVCP-RHA in defending against plaintiffs' claims; and
4, For such other and further relief as the court deems just and equitable.

Similarly, in its complaint against Vranckaert after AVCP was dismissed from the Nilsson suit, AVCP prays only "[flor indemnification from defendants for the $850,000.00 settlement amount paid to the Nilsson plaintiffs as a result of the Nilsson plaintiffs' claims against AVCP-RHA" and for "indemnification for all fees and costs incurred by AVCP-RHA in defending against the Nilsson plaintiffs' claims."

In its opposition to Vranckaert's motion for summary judgment, AVCP alleged that Vranckaert breached both the contractual standard of care and duty to indemnify AVCP for damages resulting from Vranck-aert's negligent performance of the contract. To the extent that the claims for breach of contract and negligence seek to recover from Vranckaert the amount that AVCP paid in settlement to the Nilsson or Engler plaintiffs or the fees or costs incurred in defending these lawsuits, the claims are not permitted. As discussed above, under our reasoning in Vertecs and under the Restatement (Third) of Torts; Apportionment of Liability § 22, AVCP's breach of contract and negligence claims must fail because they are, in essence, implied contractual indemnity claims and AVCP failed to demonstrate that it was without fault and that it settled the claims against Vranckaert and obtained from the plaintiffs a release of Vranckaert's liability.

IV. CONCLUSION

We AFFIRM the rulings of Judge Stein-kruger and Judge Hunt that AVCP's claim of passive negligence is precluded because it is the 'same claim as the claim of equitable indemnity. We also AFFIRM Judge Stein-kruger's ruling that Vranckaert was entitled to judgment as a matter of law on AVCP's claim of express contractual indemnity. Because AVCP's claim of implied contractual indemnity must fail as a matter of law, we REVERSE Judge Steinkruger's decision denying summary judgment to Vranckaert on that claim. Finally, to the extent that AVCP's remaining claims of negligence and breach of contract seek damages in the amount that AVCP paid in settlement to the two groups of plaintiffs or its costs and fees 'in defending the two suits by the plaintiffs, these claims are, in essence, implied contractual indemnity claims. AVCP failed to obtain from the plaintiffs a release of Vranck-aert's liability as part of the settlement and failed to show that it was not itself at fault. Therefore, we REVERSE Judge Steinkruger's decision as to the negligence and breach of contract claims and conclude that Vranck-aert was entitled to judgment as a matter of law. Although we disagree with Judge Hunt that Judge Curda adjudicated AVCP's indemnity claims, for the foregoing reasons we AFFIRM Judge Hunt's order granting Vranckaert summary judgment on all five indemnity claims.

MATTHEWS, Justice, not participating.

      . 823 F.Supp. 680, 688 (D.Alaska 1993).

      . Quoting Donnelly v. Eklutna, Inc., 973 P.2d 87, 91 (Alaska 1999).

      . AVCP Regional Housing Authority v. R.A. Vranckaert Co., Supreme Court Case No. S-09872, Superior Court Case No. 3AN-99-11339 CI.

      . R.A. Vranckaert Co. v. AVCP Regional Housing Authority, Supreme Court Case No. $-09893, Superior Court Case No. 4BE-99-0058-CI.

      . United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262 (Alaska 1999); Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995).

      . Alaska R. Civ. P. 56(c); see also Jackinsky, 894 P.2d at 654.

      . Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 351 (Alaska 2001).

      . Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 297 (Alaska 2000).

      . White v. State, Dep't of Natural Res., 14 P.3d 956, 959 (Alaska 2000).

      . Powers, 6 P.3d at 297.

      . Campion v. State, Dep't of Cmty. & Reg'l Affairs, 876 P.2d 1096, 1101 (Alaska 1994) (internal citation omitted).

      . The five indemnity claims that AVCP asserts are: implied contractual indemnity, express contractual indemnity, indemnity for passive negligence, breach of contract, and negligence.

      . 874 P.2d 949, 956 (Alaska 1994) (citing Vertecs Corp. v. Reichhold Chems., Inc., 661 P.2d 619, 625-26 (Alaska 1983)).

      . See Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assocs., 823 P.2d 632, 636 (Alaska 1991) (holding that "implied contractual indemnity ... rests on the principle that a contract to perform a service contains a three-part implied promise"); Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059, 1067 (Alaska 1979) (describing express contractual indemnity as a "duty to indemnify [that] arises under contract').

      . The parties dispute whether AVCP was required to bring all of its indemnity claims when it moved to amend its third-party complaint in Nilsson. Because we conclude that Vranckaert is entitled to judgment as a matter of law on AVCP's indemnity claims, we need not reach this issue.

      . C.J.M. Constr., Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60 (Alaska 1985); Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976); see also Burgess Constr. Co. v. State, 614 P.2d 1380 (Alaska 1980).

      . See C.J.M. Constr., 708 P.2d at 63; Earthmovers of Fairbanks, Inc. v. State, 644 P.2d 238, 239 (Alaska 1982).

      . See City & Borough of Juneau v. Alaska Elec. Light & Power Co., 622 P.2d 954, 956 (Alaska 1981) (holding that where the scope of the indemnity requirement is modified by the phrase "resulting from negligence on the part of the [indemnitor]," the phrase cannot reasonably be construed as intending that the indemnitor indemnify the indemnitee for the indemnitee's own negligence).

      . 823 P.2d 632, 636 (Alaska 1991).

      . Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assocs., 795 P.2d 793, 804 (Alaska 1990) (citing Bear Creek Planning Committee v. Title Ins. & Trust Co., 164 Cal.App.3d 1227, 211 Cal.Rptr. 172, 178 (1985)).

      . Id. (quoting Bear Creek Planning Committee, 211 Cal.Rptr. at 180).

      . AS 09.17.080.

      . 661 P.2d 619, 626 (Alaska 1983), superseded on other grounds by statute as stated in Benner v. Wichman, 874 P.2d 949, 956 (Alaska 1994) (holding that the 1987 ballot initiative "did away with one category of claims-contribution. It did not purport to abolish all claims between defendants and potential third-party defendants. For example, despite our rejection of equitable indemnity in Vertecs, we certainly did not reject contractual indemnity.").

      . Id. at 621.

      . Id. at 624-25.

      . Restatement (Temp) or Torts: Apportionment or Liasmity § 22 Reporter's Note cmt. b (1999).

      . Id.

      . Id.

      . Vertecs, 661 P.2d at 625.

      . AS 09.17.080 on "[alpportionment of damages" provides:
      (a) In all actions involving fault of more than one person, including third-party defendants and persons who have settled or otherwise been released, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating
      (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
      (2) the percentage of the total fault that is allocated to each claimant, defendant, third-party defendant, person who has been released from lability, or other person responsible for the damages unless the person was identified as a potentially responsible person, the person is not a person protected from a civil action under AS 09.10.055, and the parties had a sufficient opportunity to join that person in the action but chose not to; ...

      (b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each person at fault, and the extent of the causal relation between the conduct and the damages claimed.
      (c) The court shall determine the award of damages to each claimant in accordance with the findings and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault as determined under (a) of this section. Except as provided under AS 23.30.015(g), an assessment of a percentage of fault against a person who is not a party may only be used as a measure for accurately determining the percentages of fault of a named party. Assessment of a percentage of fault against a person who is not a party does not subject that person to civil lability in that action and may not be used as evidence of civil liability in another action.
      (d) The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.

      . At oral argument before us, counsel for AVCP asserted that its negligence and breach of contract claims were also designed to recover dam-'o us ages for AVCP's "impugned reputation," the repair work on the stoves, and the cost of replacing the stoves. The merits of these potential direct claims are not before us.


author: COATS, Chief Judge.

text:
    Robert E. RICHARDSON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8124.
    Court of Appeals of Alaska.
    May 17, 2002.
    Andrew J. Lambert, Kalamarides & Lambert, Anchorage, for Appellant.
    Leonard M. Linton, Jr., Assistant District Attorney, Susan A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

      Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Robert E. Richardson was convicted of murder in the second degree and assault in the first degree for an incident where, after being warned not to drive, he drove while intoxicated. Richardson crossed the center line and struck another vehicle, killing two people and seriously injuring two others. Superior Court Judge Michael J. Wolverton sentenced Richardson to twenty-eight years of imprisonment with fifteen years suspended. He also ordered Richardson's driver's license revoked for a period of twenty years, running from the date of the offense. Richardson does not appeal his sentence of imprisonment to this court but rather contends that Judge Wolverton's revocation of his driver's license was excessive. We affirm.

On July 12, 2000, Richardson went off the road and drove his truck into a pond of water located off Portage Valley Road. Richardson telephoned a tow truck driver to pull him out of the pond. When the tow truck driver arrived at the seene, he pulled Richardson's truck out of the water. But, from his contact with Richardson, he concluded that Richardson was too drunk to drive and told him not to drive. In addition, an employee of the National Park Service arrived at the pond and also told Richardson that he was too drunk to drive.

Richardson agreed that he was too drunk to drive. He told the park service employee and the tow truck driver that he needed to move his truck to a camping area along Portage Valley Road where he could sleep off the effects of his drinking. The tow truck driver and the park service employee led Richardson to the camping area and Richardson pulled off into the area.

The tow truck driver left the camping area but the park service employee waited for a few minutes to make sure that Richardson did not try to drive. But after a while, the park service employee left. Shortly thereafter, Richardson left the camping area and proceeded down Portage Valley Road. As Richardson drove down the road, he crossed the center line, striking a car. The car was driven by Kevin Blake, age sixteen. The passenger sitting behind Blake was Kenneth Kramer, age eleven. The collision killed both of the boys. Blake's grandparents, David Glasen and Patsy Glasen, were on the other side of the car and survived the collision, but both were seriously injured.

Richardson entered a plea of no contest to an information charging one count of murder in the second degree, consolidating the deaths of Kevin Blake and Kenneth Kramer. He also pled no contest to one count of assault in the first degree, encompassing the injuries to the Hasens.

Richardson was thirty-six years old at the time of sentencing. He had a prior assault conviction from 1985. Richardson concedes that this assault conviction apparently arose out of the consumption of alcohol because alcohol sereening was required as part of his sentence. The court sentenced Richardson to 180 days of probation and a $25 fine for this conviction. In 19983, Richardson was convicted of bank larceny and sentenced to three years of probation and a $8,000 fine. Between 1992 and 1997, Richardson had three traffic violations: one for improper backing and two for speeding.

Richardson contends that Judge Wolverton failed to make sufficient findings to support the twenty-year revocation of his driver's license. Richardson concedes he is an alcoholic, but he points out that, at least until the events of this case, he had been sober for the prior twelve years. Richardson also points out that he has no prior convictions for driving while intoxicated, reckless driving, or similar driving offenses. He argues that his prior history does not indicate that he will pose a danger to the public in the future.

Before we address the merits of these contentions, we must first address a legal issue raised by the state. The state asserts that Richardson does not have the right to appeal this aspect of his sentence and that we have no jurisdiction to decide Richardson's case.

The state's jurisdictional objection to Richardson's appeal

The state's jurisdictional argument is based on two statutes: AS 12.55.120, which governs a defendant's right to appeal a sentence, and AS 22.07.020(b), which defines this court's authority to hear a sentence appeal.

Alaska Statute 12.55.120(a) states that, with certain exceptions not pertinent here, felony defendants can appeal their sentences if the sentences require service of more than two years of imprisonment:

(a) A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense or exceeding 120 days for a misdemeanor offense may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive....

The legislature has placed a corresponding limit on this court's authority to hear sentence appeals. Alaska Statute 22.07.020(b) states:

(b) Except as limited in AS 12.55.120, the court of appeals has jurisdiction to hear appeals of unsuspended sentences of imprisonment exceeding two years for a felony offense or 120 days for a misdemeanor offense imposed by the superior court on the grounds that the sentence is excessive, or a sentence of any length on the grounds that it is too lenient. The court of appeals, in the exercise of this jurisdiction, may modify the sentence as provided by law and the state constitution.

The state construes AS 12.55.120(a) to mean that the defendant's term of imprisonment is the only component of a sentence that can be appealed. In other words, the state argues that the legislature has forbidden defendants from challenging the amounts of their fines, the conditions of their probation, or-as in Richardson's case-the terms of their license revocations. And, based on this interpretation of AS 12.55.120(a), the state argues that AS 22.07.020(b) forbids this court from reviewing any component of a sentence except a term of imprisonment that exceeds two years.

We rejected a related argument in Hill-man v. Anchorage. The defendant in Hill-man was convicted of driving while intoxicated and, as a component of his sentence, the district court ordered forfeiture of his vehi-cleA Hillman appealed this forfeiture, contending that it was illegal. (Specifically, Hillman argued that his vehicle was worth so much money that the forfeiture constituted an excessive fine, which is prohibited by both the federal and state constitutions.)

The Municipality of Anchorage responded that we had no authority to review the district court's decision. The municipality based its argument on AS 22.07.020(c), a sibling provision of the statute at issue in the present case.

Alaska Statute 22.07.020(c) governs this court's jurisdiction over sentence appeals from the district court. The statute declares that this court "has jurisdiction to review ... (2) the final [sentencing] decision of the district court ... if the sentence exceeds 120 days of unsuspended incarceration." Because Hillman received a jail sentence of only sixty days to serve, the municipality argued that we had no authority to review the forfeiture of Hillman's vehicle or, indeed, any aspect of his sentence.

We rejected this argument because it was inconsistent with the legislative history of AS 22.07.020(c). We also noted that the municipality's interpretation of the statute would lead to absurd results (for example, our inability to review a district court's decision to sentence a defendant to 30 days in jail for negligent driving, an offense that is not punishable by imprisonment).

We concluded instead that AS 22.07.020(c) was intended merely to "complement[] the . restrictions on district court sentence appeals embodied in ... the sentence appeal statute, AS 12.55.1120. That is, the legislature's intention was to restrict our sentence appeal jurisdiction by "incorporat[ing] the limitation placed on district court sentence appeals by AS 12.55.120(d)" The AS 12.55.120(d) limitation is that a defendant can appeal "[a] sentence of imprisonment lawfully imposed by the district court" only if the defendant received "a term or ... aggregate terms exceeding 120 days of unsuspended incarceration. Because Hillman claimed that the forfeiture provision of his sentence was illegal, his appeal was not a "sentence appeal" within the meaning of this statute." We therefore concluded that we had jurisdiction to review and decide Hillman's claim.

Richardson's case is different from Hill-man because Richardson does not claim that the revocation of his driver's license was illegal. Rather, he claims that the superior court failed to adequately justify a twenty-year license revocation under the Chaney sentencing criteria. That is, Richardson claims that the twenty-year revocation constitutes an abuse of sentencing discretion. Thus, Richardson's appeal is a true "sentence appeal" as we defined that term in Roskydal v. State. Because of this, Hillman does not provide a direct answer to the state's claim that Richardson is prohibited from challenging the license revocation on appeal.

However, Hillman suggests a major component of our answer to the state's contention. In EHillman, we held that AS 22.07.020(c)-the statute defining our jurisdiction to hear district court sentence appeals-was intended merely "to incorporate the limitation placed on district court sentence appeals by AS 12.55.120(d)" We reach the same conclusion with respect to the sibling provision at issue in Richardson's case-AS 22.07.020(b), the statute that defines our jurisdiction to hear superior court sentence appeals. We conclude that AS 22.07.020(b) was intended to incorporate the limitation on superior court sentence appeals codified in AS 12.55.120(2a).

Thus, the ultimate question is: what limitations does AS 12.55.120(a) place on sentence appeals from the superior court? The pertinent portion of the statute declares that a defendant can appeal "[al sentence of im-: prisonment lawfully imposed by the superior court ... for a felony offense" if the defendant received "a term or aggregate terms exceeding two years of unsuspended incarceration." The statute discusses only "sentencel[s] of imprisonment." It does not mention a defendant's ability to appeal the amount of a fine, the conditions of probation imposed by the sentencing judge, or the term of a license suspension.

We therefore are faced with at least two competing interpretations of this statute. The interpretation proposed by the state is that felony defendants have no right to appeal any aspect of their sentences other than unsuspended terms of imprisonment exceeding two years. The alternative interpretation is that, assuming a felony defendant meets the requirement specified in the statute (an unsuspended term of imprisonment exceeding two years), the defendant retains the right to appeal any aspect of the sentence. For the reasons that follow, we conclude that this second interpretation is more convincing.

First, we note that in 1995, when the legislature amended AS 12.55.120 and AS 22.07.020 to include the current restrictions on sentence appeals, this court had previously decided several appellate challenges to aspects of eriminal sentences other than the term of imprisonment. For example, in Dodge v. Anchorage, we reviewed a sentencing court's decision to revoke a defendant's driver's license for life. In Graybill v. State, we reviewed the defendant's claim that the sentencing judge revoked his big-game guide license for an excessive period of time. And in McCann v. State and Ash-ton v. State, we reviewed defendants' claims that their fines were excessive.

The legislative history of AS 12.55.120 is silent regarding this history of sentence appeal litigation involving matters other than terms of imprisonment. As we noted in Roz-kydal, when the legislature discussed the proposed amendments to AS 12.55.120 and AS 22.07.020, the legislature focused primarily on the length of prison sentences. The legislature's concern was to spare state government the expense of litigating sentence appeals involving lesser sentences when, statistically, the overwhelming majority of these appeals ended in affirmance. But the legislature did not express a desire to limit sentence appeals to the single issue of whether the defendant's unsuspended term of imprisonment was excessive.

Moreover, the state's suggested interpretation of AS 12.55.120(a) would present many administrative difficulties. Often, defendants who receive unsuspended term of imprisonment exceeding two years will challenge not only the length of the prison term but also other aspects of their sentences. Under the state's interpretation, this court would be limited to deciding the defendant's challenge to the prison term and then we would have to transfer all remaining issues to the supreme court under Alaska Appellate Rule 215(a). In the absence of some affirmative indication that this is what the legislature wanted, we doubt that the legislature intended to make the decision of a sentence appeal so difficult.

For these reasons, we reject the narrow interpretation of AS 12.55.120(a) proposed by the state. Rather, we hold that felony defendants who receive unsuspended terms of imprisonment exceeding two years can appeal any aspect of their sentences.

The merits of Richardson's appeal

We conclude that Judge Wolverton's findings in support of his sentence were sufficient to support his decision to order Richardson's license to be revoked for twenty years. Judge Wolverton ordered Richardson's license revocation to begin from the date of his offense. As a practical matter, much of the time that Richardson's license is revoked will pass while Richardson is in prison and will have little impact on him during that time. Of course a substantial portion of the license revocation will also take place after Richardson is released from prison. But given the seriousness of Richardson's offense, restricting his license for this time appears to be a reasonable exercise of judicial authority. Although Richardson's former long period of sobriety is commendable, the facts of Richardson's case are particularly egregious and justify imposing a substantial license revocation to protect the public. Richardson was repeatedly warned that he was too intoxicated to drive. Nevertheless, he chose to drive, killing two young boys and seriously injuring two other people.

We conclude that these facts and Judge Wolverton's general analysis in imposing Richardson's sentence justified the twenty-year license revocation. We conclude that the sentence is not clearly mistaken.

The sentence is AFFIRMED.

      . AS 11.41.110(a)(2).

      . AS 11.41.200(a)(1).

      . 941 P.2d 211 (Alaska App.1997).

      . Id. at 212.

      . Id. at 215-17.

      . See U.S. Const. amend. VIII; Alaska Const. art. I, § 12.

      . Id. at 212-15.

      . Id. at 212.

      . Id.

      . Id. at 214-15.

      . Id. at 215.

      . Id. at 212.

      . Id. at 215.

      . See Rozkydal v. State, 938 P.2d 1091, 1093 -95 (Alaska App.1997) (construing the term "sentence appeal" to include only those appeals in which the defendant concedes the lawfulness of the sentence but argues that it constitutes an abuse of sentencing discretion}.

      . Hillman, 941 P.2d at 215.

      . State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). The sentencing criteria are now codified at AS 12.55.005.

      . 938 P.2d 1091, 1093.

      . Id. at 215.

      . AS 12.55.120(a).

      . Id.

      . See ch. 79, §§ 7-8, 11-12 SLA 1995.

      . 877 P.2d 270 (Alaska App.1994).

      . Id. at 273.

      . 672 P.2d 138 (Alaska App.1983), rev'd on other grounds, 695 P.2d 725 (Alaska 1985).

      . Id. at 143 n. 5.

      . 817 P.2d 484 (Alaska App.1991).

      . 737 P.2d 1365 (Alaska App.1987).

      . McCann, 817 P.2d at 487; Ashton, 737 P.2d at 1366 n. 1. Compare Haggren v. State, 829 P.2d 842, 845 (Alaska App.1992) (where we held that a defendant had no right to appeal the amount of his fine or the amount of a property forfeiture when the defendant was not sentenced to a term of imprisonment of at least forty-five days (which, at that time, was the minimum term of imprisonment required to trigger the right of sentence appeal)).

      . See Rozkydal, 938 P.2d at 1096-97.

      . See id. at 1096-97.

      . This rule allows a defendant to petition the supreme court to review any sentencing issue that is not appealable.

      . McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).


author: Justice COATS

text:
    BRUSH GROCERY KART, INC., a Colorado corporation, Petitioner, v. SURE FINE MARKET, INC., a Colorado corporation, Respondent.
    No. 01SC267.
    Supreme Court of Colorado, En Banc.
    June 3, 2002.

      Edward L. Zorn, Fort Morgan, CO, Attorney for Petitioner.
    Robert B. Chapin, Brush, CO, Attorney for Respondent.
   Justice COATS

delivered the Opinion of the Court.

Brush Grocery Kart, Inc. sought review of the court of appeals' judgment affirming the district court's determination of Brush's obligation on an option contract to purchase a building from Sure Fine Market, Inc. Brush Grocery Kart v. Sure Fine Market, 30 P.3d 810 (Colo.App.2001). The district court found that Brush was not entitled to a price abatement for damages caused by a hail storm that occurred during litigation between the parties over the purchase price of the property. The court of appeals affirmed on the grounds that equitable title to the property vested in Brush when it exercised its option to purchase, whether or not it also had a right of possession, and therefore Brush bore the risk of any casualty loss after that time. Because we hold that Brush was entitled to specific performance of the contract with an abatement of the purchase price reflecting the casualty loss, the judgment of the court of appeals is reversed.

I. FACTUAL AND PROCEDURAL HISTORY

In October 1992 Brush Grocery Kart, Inc. and Sure Fine Market, Inc. entered into a five-year "Lease with Renewal Provisions and Option to Purchase" for real property, including a building to be operated by Brush as a grocery store. Under the contract's purchase option provision, any time during the last six months of the lease, Brush could elect to purchase the property at a price equal to the average of the appraisals of an expert designated by each party.

Shortly before expiration of the lease, Brush notified Sure Fine of its desire to purchase the property and begin the process of determining a sale price. Although each party offered an appraisal, the parties were unable to agree on a final price by the time the lease expired. Brush then vacated the premises, returned all keys to Sure Fine, and advised Sure Fine that it would discontinue its casualty insurance covering the property during the lease. Brush also filed suit, alleging that Sure Fine failed to negotiate. the price term in good faith and asking for the appointment of a special master to determine the purchase price. Sure Fine agreed to the appointment of a special master and counterclaimed, alleging that Brush negotiated the price term in bad faith and was therefore the breaching party.

During litigation over the price term, the property was substantially damaged during a hail storm. With neither party carrying casualty insurance, each asserted that the other was liable for the damage. The issue was added to the litigation at a stipulated amount of $60,000. The court appointed a special master pursuant to C.R.C.P. 53 and accepted his appraised value of $375,000. The court then found that under the doctrine of equitable conversion, Brush was the equitable owner of the property and bore the risk of loss. It therefore declined to abate the purchase price or award damages to Brush for the loss.

Brush appealed the loss allocation, and the court of appeals affirmed on similar grounds. It considered the prior holdings of this court acknowledging the doctrine of equitable conversion and found that in Wiley v. Lininger, 119 Colo. 497, 204 P.2d 1083 (1949), that doctrine was applied to allocate the risk of casualty loss occurring during the executory period of a contract for the purchase of real property. Relying heavily on language from the opinion purporting to adopt the “m'ajorit'y rule," the court of appeals found that our characterization of the rule as placing the risk of casualty loss on a vendee who "is in possession," id. at 502, 204 P.2d at 1086, reflected merely the facts of that case rather than any intent to limit the rule to vendees who are actually in possession. Noting that allocation of the risk of loss in cireumstances where the vendee is not in possession had not previously been addressed by an appellate court in this jurisdiction, the court of appeals went on to conclude that a "bright line rule" allocating the risk of loss to the vendee, without regard to possession, would best inform the parties of their rights and obligations under a contract for the sale of land.

Brush petitioned for a writ of certiorari to determine the proper allocation of the risk of loss and the appropriate remedy under these cireumstances.

II. SECTION 38-30-167, 10 C.R.S. (2001)

The General Assembly in this jurisdiction has often codified or altered various aspects of common law doctrines concerning interests in real property. See, e.g., title 38, art. 30, 10 C.R.S. (2001) ("Interests in Land: Titles and Interests"). Although the legislature has not expressly addressed the allocation of casualty loss risk in the context of a sale of real property, in 1979 it added to the revised statutes a provision concerning the remedies available to a vendee upon a failure of the vendor to fully comply due to impossibility:

If it is possible for a vendor of real property to convey a portion of the real property he contracted to convey, the vendee has a right to obtain a conveyance of that portion which it is possible to convey and a right to obtain damages or other equitable relief concerning the portion which it is impossible to convey.

See § 38-30-167, 10 C.R.S. (2001). Brush asserts that this provision implicitly allocates the risk of casualty loss during the executory period of the contract to the vendor.

While this language of the statute could be understood, in its most literal sense, to mean that the vendee is always entitled to damages or other equitable relief for that portion of real property that a vendor has agreed, but is unable, to convey, such a broad reading would lead to absurd results and is clearly not the only permissible understanding of the operative language. The section is entitled, "Right of purchaser to obtain partial specific performance," and its central provision insures a purchaser's right to the conveyance of a portion of the contract property, even if the vendor is no longer capable of conveying all of it. By conjoining the right of partial specific performance and a right to damages or other equitable relief, the statute simply makes clear that the remedy of partial specific performance is an additional remedy rather than a substitute for any relief to which the purchaser would be entitled for the vendor's inability to fully comply with the terms of the contract.

The fact that the statute provides a different type of remedy for each "portion" of the property need not mean, however, that the legislature intended to assign liability for casualty loss to the vendor in every case. Such an implication would be contrary to accepted defenses, and would, on its face, entitle a vendee to damages even if he were at fault. Nor is it even clear from the language of the statute itself that casualty loss to improvements on the property materially changing their condition from the time of the contract would make it impossible to convey a portion of the real property as contemplated by the statute.

If the language of a statute is not clear, various aids to construction, including consideration of any relevant legislative history, may assist in resolving the ambiguity. Reg'l Transp. Dist. v. Outdoor Sys., Inc., 34 P.3d 408, 414 (Colo.2001). While the testimony of the bill's sponsor in committee hearings suggests that he did not necessarily consider casualty loss to improvements to be outside the seope of the statute, it also makes clear that the legislation was specifically crafted to entitle a vendee to force a conveyance of any conveyable portion of the property rather than merely settle for damages for breach of the contract. See Hearing on Senate Bill 470, Before the Senate Judiciary Committee, 52d General Assembly, 1st Regular Session (hearing tape, Mar. 13, 1979); Hearing on Senate Bill 470, Before the House Judiciary Committee, 52d General Assembly, lst Regular Session (hearing tape, April 10, 1979). The bill was expressly characterized as an attempt to overrule the holding of this court in Atchison v. City of Englewood, 193 Colo. 367, 568 P.2d 183 (1977), which the sponsor understood to eliminate the remedy of partial specific performance, and was apparently never intended to create a separate right of vendees to obtain damages or other equitable relief for any uncon-veyable portion of the property, without regard to other considerations. See Hearings on Senate Bill 470.

In light of this clear legislative history, section 38-80-167 can be reasonably understood only as providing a remedy to vend-ees of partial specific performance in addition to any right to which they would otherwise be entitled to damages or other equitable relief concerning the portion of the property that could not be conveyed. The legislature has simply failed to assign the risk of casualty loss during the executory period of a contract for the sale of real property in this or apparently any other statute. Where no statute controls, interests in real property must be determined by reference to the common law. ALH Holding Co. v. Bank of Telluride, 18 P.3d 742, 745 (Colo.2000).

III. THE RISK OF CASUALTY LOSS IN THE ABSENCE OF STATUTORY AUTHORITY

In the absence of statutory authority, the rights, powers, duties, and liabilities arising out of a contract for the sale of land have frequently been derived by reference to the theory of equitable conversion. People v. Alexander, 663 P2d 1024, 1080 n. 6 (Colo.1983)(quoting III American Law of Property § 11.22, at 62-63 (A. Casner ed.1974)). This theory or doctrine, which has been described as a legal fiction, see Chain O'Mines v. Williamson, 101 Colo. 231, 234, 72 P.2d 265, 266 (1937), is based on equitable principles that permit the vendee to be considered the equitable owner of the land and debtor for the purchase money and the vendor to be regarded as a secured creditor. Alexander, 663 P2d at 1030 n. 6. The changes in rights and liabilities that occur upon the making of the contract result from the equitable right to specific performance. Id. Even with regard to third parties, the theory has been relied on to determine, for example, the devolution, upon death, of the rights and liabilities of each party with respect to the land, see Chain O'Mines, 101 Colo. at 284-85, 72 P.2d at 266, and to ascertain the powers of creditors of each party to reach the land in payment of their claims. Alexander, 663 P.2d at 1030 n. 6.

The assignment of the risk of casualty loss in the executory period of contracts for the sale of real property varies greatly throughout the jurisdictions of this country. What appears to yet be a slim majority of states, see Randy R. Koenders, Annotation, Risk of Loss by Casualty Pending Contract for Conveyance of Real Property Modern Cases, 85 A.L.R Ath 288 (2001), places the risk of loss on the vendee from the moment of contracting, on the rationale that once an equitable conversion takes place, the vendee must be treated as owner for all purposes. See Skellty Oil v. Ashmore, 865 S.W.2d 582, 588 (Mo.1963)(criticizing this approach). Once the vendee becomes the equitable owner, he therefore becomes responsible for the condition of the property, despite not having a present right of occupancy or control. In sharp contrast, a handful of other states reject the allocation of casualty loss risk as a consequence of the theory of equitable conversion and follow the equally rigid "Massachusetts Rule," under which the seller continues to bear the risk until actual transfer of the title, absent an express agreement to the contrary. See, e.g., Skelly Oil, 365 S.W.2d at 588-89. A substantial and growing number of jurisdictions, however, base the legal consequences of no-fault casualty loss on the right to possession of the property at the time the loss occurs. Koenders, supra, §§ 6, 7. This view has found expression in the Uniform Vendor and Purchaser Risk Act, and while a number of states have adopted some variation of the Uniform Act, others have arrived at a similar position through the interpretations of their courts. See, e.g., Lucenti v. Cayuga Apartments, 48 N.Y.2d 530, 423 N.Y.S.2d 886, 399 N.E.2d 918, 923-24 (1979); see also Koenders, supra, §§ 6, 7.

This court has applied the theory of equitable conversion in limited cireumstances affecting title, see Konecny v. von Gunten, 151 Colo. 376, 379 P.2d 158 (1968)(finding vendors incapable of unilaterally changing their tenancy in common to joint tenancy during the executory period of the contract because their interest had been equitably converted into a mere security interest and the vend-ee's interest into realty), and refused to apply it in some circumstances, see Chain O'Mines, 101 Colo. 231, 72 P.2d 265 (holding that even if the doctrine applies to option contracts, no conversion would take place until the option were exercised by the party having the right of election). It has also characterized the theory as affording significant protections to purchasers of realty in Colorado. See Dwyer v. Dist. Court, 188 Colo. 41, 532 P.2d 725 (1975)(finding personal jurisdiction over out-of-state vendee in part because of the protections afforded vendees of land in this jurisdiction during the execu-tory period of the contract). It has never before, however, expressly relied on the theory of equitable conversion alone as allocating the risk of casualty loss to a vendee.

In Wiley v. Lininger, 119 Colo. 497, 204 P.2d 1083, where fire destroyed improvements on land occupied by the vendee during the multi-year executory period of an installment land contract, we held, according to the generally accepted rule, that neither the buyer nor the seller, each of whom had an insurable interest in the property, had an obligation to insure the property for the benefit of the other. Id. at 502, 204 P.2d at 1085-86. We also adopted a rule, which we characterized as "the majority rule," that "the vendee under a contract for the sale of land, being regarded as the equitable owner, assumes the risk of destruction of or injury to the property where he is in possession, and the destruction or loss is not proximately caused by. the negligence of the vendor." Id. (emphasis added). The vendee in possession was therefore not relieved of his obligation to continue making payments according to the terms of the contract, despite material loss by fire to some of the improvements on the property.

Largely because we included a citation, preceded by the introductory signal, "see," to an A.LR. annotation, describing a "majority rule" without reference to possession, see 101 ALR. 1241 (superseded by Koenders, supro ), the court of appeals found our characterization of the rule, as imposing the risk on vendees who are in possession, to be uncont-rolling. While it may have been unnecessary to determine more than the obligations of a vendee in possession in that case, rather than limit the holding to that situation, this court pointedly announced a broader rule. The rule expressly articulated by this court limited the transfer of the risk of loss to vendees who are already in possession. Had this not been the court's deliberate intention, there would have been no need to mention possession at all because a rule governing all vendees would necessarily include vendees in possession. Whether or not a majority of jurisdictions would actually limit the transfer of risk in precisely the same way, the rule as clearly stated and adopted by this court was supported by strong policy and theoretical considerations at the time, and those considerations apply equally today.

Those jurisdictions that indiserimi-nately include the risk of casualty loss among the incidents or "attributes" of equitable ownership do so largely in reliance on ancient authority or by considering it necessary for consistent application of the theory of equitable conversion. See Skelly Oil, 365 S.W.2d at 592 (Stockman, J. dissenting)(quoting 4 Williston, Contracts, § 929, at 2607: "Only the hoary age and frequent repetition of the maxim prevents a general recognition of its absurdity."); see also Paine v. Meller, (1801) 6 Ves. Jr. 349, 81 Eng. Reprint 1088. Under virtually any accepted understanding of the theory, however, equitable conversion is not viewed as entitling the purchaser to every significant right of ownership, and particularly not the right of possession. As a matter of both logic and equity, the obligation to maintain property in its physical condition follows the right to have actual possession and control rather than a legal right to force conveyance of the property through specific performance at some future date. See 17 Samuel Williston, A Treatise On the Law of Contracts § 50:46, at 457-58 (Richard A. Lord ed., 4th ed. 1990) ("[I]t is wiser to have the party in possession of the property care for it at his peril, rather than at the peril of another.").

The equitable conversion theory is literally stood on its head by imposing on a vendee, solely because of his right to specific performance, the risk that the vendor will be unable to specifically perform when the time comes because of an accidental casualty loss. It is counterintuitive, at the very least, that merely contracting for the sale of real property should not only relieve the vendor of his responsibility to maintain the property until execution but also impose a duty on the vendee to perform despite the intervention of a material, no-fault casualty loss preventing him from ever receiving the benefit of his bargain. Such an extension of the theory of equitable conversion to casualty loss has never been recognized by this jurisdiction, and it is neither necessary nor justified solely for the sake of consistency.

By contrast, there is substantial justification, both as a matter of law and policy, for not relieving a vendee who is entitled to possession before transfer of title, like the vendee in Wiley, of his duty to pay the full contract price, notwithstanding an accidental loss. In addition to having control over the property and being entitled to the benefits of its use, an equitable owner who also has the right of possession has already acquired virtually all of the rights of ownership and almost invariably will have already paid at least some portion of the contract price to exercise those rights,. By expressly including in the contract for sale the right of possession, which otherwise generally accompanies transfer of title, see, e.g., § 88-30-120, 10 C.R.S. (2001)("Conveyance carries right of possession"), the vendor has for all practical purposes already transferred the property as promised, and the parties have in effect expressed their joint intention that the vendee pay the purchase price as promised. Willi-ston, swpra, § 50:46 at 454-55.

In Wiley, rather than adopting a rule to the effect that a vendee assumes the risk of casualty loss as an incident of equitable ownership, our holding stands for virtually the opposite proposition. Despite being the equitable owner, the vendee in that case was prohibited from rescinding only because he was already rightfully in possession at the time of the loss. While Wiley could be read to have merely resolved the situation under an installment contract for the sale of land that gave the vendee a right of immediate possession, the rule we adopted foreshadowed the resolution of this case as well. In the absence of a right of possession, a vendee of real property that suffers a material casualty loss during the executory period of the contract, through no fault of his own, must be permitted to rescind and recover any payments he had already made. CL Uniform Vendor and Purchaser Risk Act § 1.

Furthermore, where a vendee is entitled to rescind as a result of casualty loss, the vendee should generally also be entitled to partial specific performance of the contract with an abatement in the purchase price reflecting the loss. Where the damage is ascertainable, permitting partial specific performance with a price abatement allows courts as nearly as possible to fulfill the expectations of the parties expressed in the contract, while leaving each in a position that is equitable relative to the other. Lucenti, 423 N.Y.S.2d 886, 399 N.E.2d at 923-24 (applying common law rule allowing partial specific enforcement with price abatement for casualty loss in order to effectuate substance of parties agreement). Partial specific performance with a price abatement has long been recognized in this jurisdiction as an alternative to rescission in the analogous situation in which a vendor of real property is unable to convey marketable title to all of the land described in the contract. See Murdock v. Pope, 156 Colo. 7, 396 P.2d 841 (1964)(collecting cases into the nineteenth century); ¢f. § 88-30-167.

Here, Brush was clearly not in possession of the property as the equitable owner. Even if the doctrine of equitable conversion applies to the option contract between Brush and Sure Fine and could be said to have converted Brush's interest to an equitable ownership of the property at the time Brush exercised its option to purchase, see Chain O'Mines, 101 Colo. at 235, 72 P.2d at 266, neither party considered the contract for sale to entitle Brush to possession. Brush was, in fact, not in possession of the property, and the record indicates that Sure Fine considered itself to hold the right of use and occupancy and gave notice that it would consider Brush a holdover tenant if it continued to occupy the premises other than by continuing to lease the property. The casualty loss was ascertainable and in fact stipulated by the parties, and neither party challenged the district court's enforcement of the contract except with regard to its allocation of the casualty loss. Both the court of appeals and the district court therefore erred in finding that the doctrine of equitable conversion required Brush to bear the loss caused by hail damage.

IV. CONCLUSION

Where Brush was not an equitable owner in possession at the time of the casualty loss, it was entitled to rescind its contract with Sure Fine. At least under the circumstances of this case, where Brush chose to go forward with the contract under a stipulation as to loss from the hail damage, it was also entitled to specific performance with an abatement of the purchase price equal to the casualty loss. The judgment of the court of appeals is therefore reversed and the case is remanded for further proceedings consistent with this opinion.

      . Our grant of certiorari was on the following issue:
      Whether or not the Colorado Court of Appeals erred in its determination that under Colorado law, a purchaser of real property assumes the risk and burden of casualty loss to the subject real property as of the date of the execution of the contract or other instrument whereby a purchaser has agreed to purchase and the seller has agreed to sell the subject real property even though neither possession nor title has passed to the purchaser.

      . Under the Uniform Vendor and Purchaser Risk Act § 1, 14 U.LA. 471 (1968)("Risk of Loss"):
      Any contract hereafter made in this State for the purchase and sale of realty shall be interpreted as including an agreement that the parties shall have the following rights and duties, unless the contract expressly provides otherwise:
      (a) If, when neither the legal title nor the possession of the subject matter of the contract has been transferred, all or a material part thereof is destroyed without fault of the purchaser or is taken by eminent domain, the vendor cannot enforce the contract, and the purchaser is entitled to recover any portion of the price that he has paid;
      (b) If, when either the legal title or the possession of the subject matter of the contract has been transferred, all or any part thereof is destroyed without fault of the vendor or is taken by eminent domain, the purchaser is not thereby relieved from a duty to pay the price, nor is he entitled to recover any portion thereof that he has paid.