584 P.2d 15 (Alaska 1978)
In June 1975, Totem Marine Tug & Barge, Inc., a closely held Alaska corporation that began operations in March 1975, entered into a contract with Alyeska Pipeline Service Co. to transport pipeline construction materials from Houston, Texas, to a designated port in southern Alaska.1 Richard Stair, vice-president of Totem, arranged charters of the barge Marine Flasher and the tug Kirt Chouest, financed in part by loans and guarantees from Stair individually and from Pacific, Inc., a corporation of which Stair was principal stockholder and officer.2
Performance difficulties began immediately upon arrival in Houston, where Alyeska presented approximately 6,700 to 7,200 tons of coated pipe, steel beams, and valves instead of the anticipated 1,800 to 2,100 tons of regular un-coated pipe.3 The unexpected volume and condition of the cargo required barge remodeling, extra cranes and stevedores, and extended loading to thirty days.4 After departure the vessels traveled more slowly than expected; Totem chartered a second tug, the N. Joseph Guidry, with Alyeska's verbal consent, but the Guidry waited additional days at the Panama Canal until Alyeska executed a written contract amendment on August 21, 1975.5 The vessels then encountered the tail of a hurricane lasting eight or nine days.6
Upon reaching California, Alyeska ordered the vessels into Long Beach rather than San Pedro and began off-loading the barge without Totem's consent, without a load survey, and without a marine survey that voided Totem's insurance.7 After off-loading, Alyeska terminated the contract on or about September 14, 1975.8
Totem submitted termination invoices totaling between $260,000 and $300,000. An Alyeska official indicated payment might occur in a day or in six to eight months. Facing creditor demands on 10- to 30-day schedules and impending bankruptcy, Totem referred collection to attorney Roy Bell.9 After negotiations in Seattle, Totem received and accepted a $97,500 settlement offer; on November 6, 1975, Stair signed a release of all claims against Alyeska.10
On March 26, 1976, Totem, Stair, and Pacific filed a complaint, later amended, seeking rescission of the release on economic-duress grounds and recovery of additional contract amounts.11 Alyeska moved for summary judgment on the release.12 The superior court granted the motion on November 30, 1976.13 Totem appealed, and a dispute arose over whether the Stair deposition, extensively referenced in the summary-judgment memoranda below, formed part of the appellate record.14
Whether the superior court erred by refusing to publish the Stair deposition and excluding it from the record on appeal?15
Under Alaska Civil Rule 56, when ruling on a motion for summary judgment the trial court must examine the entire setting of the case to the extent materials have been brought to its attention by the parties, including depositions referenced in memoranda, rather than limiting review to formally published items or pleadings alone.16
Yes. The established facts show that both parties relied almost exclusively on the Stair deposition in their summary-judgment memoranda and that the deposition was extensively quoted and referenced below.17 The superior court nevertheless denied Totem's post-judgment motion to publish the deposition on the ground that it had not been formally opened during the proceedings.18 Because the parties had repeatedly directed the court's attention to specific portions of the deposition, the superior court was required to consider those portions on its own motion and to include them in the record on appeal.19
The superior court erred by refusing to publish the Stair deposition and excluding it from the record on appeal.20
Whether Totem presented evidence sufficient to create genuine issues of material fact on its claim that the release was executed under economic duress?21
A party opposing summary judgment must set forth specific facts showing a genuine issue for trial on each element of economic duress. The elements are that the defendant committed a wrongful act or threat, that the plaintiff had no reasonable alternative but to accept the terms offered, and that the plaintiff involuntarily accepted those terms because of the coercive circumstances created by the defendant.22
Yes. The established facts establish that Alyeska terminated the contract after off-loading at Long Beach, that Totem submitted invoices for $260,000 to $300,000 representing debts due on ten- to thirty-day schedules, and that an Alyeska official indicated payment might be delayed up to six to eight months while Totem faced imminent bankruptcy.23 Totem further showed that it referred collection to counsel, that negotiations produced a $97,500 offer, and that Stair signed the release on November 6, 1975, solely to obtain immediate cash.24 These facts, if proved, would permit a trier of fact to find both wrongful withholding of an acknowledged debt and the absence of any reasonable alternative to settlement, thereby creating genuine issues of material fact that preclude summary judgment.25
Totem presented evidence sufficient to create genuine issues of material fact on its claim that the release was executed under economic duress.26
Whether Richard Stair and Pacific, Inc. are bound by the release executed solely by Totem?27
Non-parties to a contract who are neither signatories nor third-party beneficiaries possess no contractual claims against the other contracting party and therefore cannot be bound by a release they did not execute.28
No. The established facts show that neither Stair individually nor Pacific, Inc. was a party to the original June 1975 contract between Totem and Alyeska, nor to the August 1975 amendment, and that no claim has been made that they were third-party beneficiaries.29 Because they held no contractual rights against Alyeska, the release executed by Totem has no effect on any separate claims they might assert, and their rights in the litigation rise or fall solely with Totem's success on the underlying contract claims.
Richard Stair and Pacific, Inc. are not bound by the release executed solely by Totem.30