       Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
       Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
       303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
       corrections@appellate.courts.state.ak.us.



                THE SUPREME COURT OF THE STATE OF ALASKA

RONALD A. BROOKS,                                  )
                                                   )    Supreme Court No. S-14181
                      Appellant,                   )
                                                   )    Superior Court No. 4FA-09-01303 CI
      v.                                           )
                                                   )    OPINION
TIMOTHY HOLLAAR,                                   )
                                                   )    No. 6761 - March 22, 2013
                      Appellee.                    )
                                                   )

              Appeal from the Superior Court of the State of Alaska, Fourth
              Judicial District, Fairbanks, Michael A. MacDonald, Judge.

              Appearances: James M. Hackett, Law Office of James M.
              Hackett, Fairbanks, for Appellant. Shelby B. Mathis, Oravec
              Law Group, LLC, Fairbanks, for Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
              Justices. [Carpeneti, Justice, not participating.]

              MAASSEN, Justice.

I.     INTRODUCTION
              A jury found Ronald Brooks liable to his former brother-in-law, Timothy
Hollaar, for the full amount of loans that had been memorialized by four promissory
notes. On appeal, Ronald argues that the trial court erred in allowing Timothy to recover
more than nominal damages, since Timothy was not the real source of the money and
intended to pay any recovery to the family members who supplied it. Ronald also argues
that the trial court erred by failing to make special findings of fact on Timothy’s
promissory estoppel claim. Finally, Ronald argues that the trial court erred in naming
Timothy the prevailing party. Because Timothy could lawfully sue to recover the loans,
the promissory estoppel claim was properly submitted to the jury, and Timothy was the
prevailing party, we affirm the judgment.
II.   FACTS AND PROCEEDINGS
             Ronald Brooks and Carmen Hollaar were married in 1989. In 1991, as
tenants by the entirety, they purchased a parcel of real property on Goldstream Road in
Fairbanks. For more than a decade, they lived in a trailer on the property with their
children.
             Between late 2005 and early 2006, Timothy Hollaar, Carmen’s brother,
loaned Ronald and Carmen a total of $184,439 to be used for the construction of a
permanent residence on the Goldstream property. The funds originated from Leroy, Ilean,
and Gwen Hollaar (the Hollaars) — Carmen and Timothy’s father, mother, and sister.
The Hollaars transferred the funds to Timothy’s bank account, and Timothy in turn
transferred the funds to Ronald and Carmen.
             These loans were memorialized in three promissory notes dated September
17, 2005, January 5, 2006, and February 13, 2006, and signed by both Ronald and
Carmen. The notes recite that the loans were to be repaid to Timothy on December 31,
2006, or upon conveyance of the property, whichever came first.
             Ronald and Carmen separated in 2005, and Ronald left the Goldstream
property. Timothy continued to provide money to Ronald and Carmen between February
and July 2006. Again the Hollaars were the source of these additional funds, which
totaled $81,991. This amount was memorialized in a fourth promissory note dated
August 31, 2006, and signed only by Carmen. In December 2006, Carmen, but not
Ronald, signed a deed of trust which purported to secure all four promissory notes with
the Goldstream property.

                                            -2-                                   6761

             In January 2008, having not yet been repaid on any of the promissory notes,
Timothy foreclosed on the Goldstream property pursuant to his deed of trust. He
purchased the property at the foreclosure sale for a credit bid of $269,226.1 Ronald and
Carmen divorced in December 2008. The divorce decree awarded the Goldstream
property to Ronald, subject to any liens or encumbrances that Timothy had against it.
Ronald assumed all the debt to Timothy related to the property, to the extent the debt was
“based on Promissory Note(s) upon which Ron is personally liable.”
             Timothy brought suit against Ronald in March 2009, asking that the superior
court award him half the Goldstream property and half its value, the full value of the
property, or all the money owed on the four promissory notes. The superior court, in
ruling on an early motion to dismiss, held that neither Ronald nor Carmen had the right
to unilaterally convey an interest in the Goldstream property since it was their marital
residence. The court held that Carmen’s deed of trust was therefore void and that
Timothy owned no interest in the Goldstream property despite his ostensible purchase of
it at the foreclosure sale. The court held that Timothy was simply an unsecured creditor
and that he could sue on the promissory notes.
             After a jury trial, Ronald was found liable to Timothy on the first three
promissory notes, those Ronald had signed, under a contract theory. As for the fourth
promissory note, the one signed only by Carmen, the jury answered “Yes” to four
questions on the verdict form asking whether the elements of promissory estoppel were




       1
              “[A] credit bid means that the holder of the note bids up to the amount of
money due it by the debtor, thereby extinguishing the debtor’s debt to the extent of the
bid.” Fed. Home Loan Mortg. Corp. v. Appel, 137 P.3d 429, 431 (Idaho 2006). We
observe that the promissory notes total $266,430, and that the superior court, in denying
a motion to dismiss, recited that figure as the amount of Timothy’s credit bid. The
difference is not material to the issues on appeal.

                                           -3-                                      6761

met2 and on that basis found Ronald liable on that note as well. In light of a dispute as
to whether the jury or the court should decide the fourth question about promissory
estoppel, i.e., whether justice required enforcement of the promise, the court stated on the
record that it “agrees with the jury in all respects, but agrees that the jury having found
the first three [elements of promissory estoppel], that justice requires enforcement of the
defendant’s promise.” The court entered judgment in Timothy’s favor on all four
promissory notes and awarded him attorney’s fees as the prevailing party.
              Ronald appeals. He argues that because Timothy had no economic interest
of his own in performance of the notes, he could sue for nominal damages but not full
contract damages. He contends that the trial court erred by not instructing the jury on this
argument and by failing to grant his motion for directed verdict and for judgment
notwithstanding the verdict based on this argument. He also argues that the trial court
violated Alaska Civil Rule 52(a) when it failed to make specific findings as to Timothy’s
promissory estoppel claim and Ronald’s unclean hands defense. Finally, Ronald argues
that the trial court erred by finding that Timothy was the prevailing party for purposes of
the award of attorney’s fees.3




       2
             The four questions for the jury on this issue were: “1) Did the defendant
make a promise to the plaintiff regarding any money advanced relating to promissory
note number four? . . . 2) Did the defendant expect or should the defendant reasonably
have expected that the promise would cause the plaintiff to act? . . . 3) In reliance on the
defendant’s promise, did the plaintiff act by advancing money? . . . [and] 4) Does justice
require enforcement of the defendant’s promise?”
       3
             Ronald argued in his brief that the trial court also erred by failing to instruct
the jury on Ronald’s unclean hands defense. The record shows that the jury was in fact
given such an instruction, which Ronald's counsel conceded at oral argument. We
therefore consider the point no further.

                                             -4-                                        6761

III.   STANDARD OF REVIEW
             We review questions of law de novo, using our independent judgment.4 We
review the superior court’s factual findings for clear error.5 We review jury instructions
de novo.6 We review the superior court’s prevailing party determination and award of
attorney’s fees for an abuse of discretion.7
IV.    DISCUSSION
       A.    Timothy Is Entitled To Recover Contract Damages From Ronald.
             Ronald argues that Timothy cannot recover more than nominal damages
because he admitted both that he had received the loan funds from the other members of
his family, the Hollaars, and that he planned to give them any recovery from this lawsuit
in repayment. According to Ronald, these admissions prove that his promise to pay
Timothy was merely what the Restatement calls a “gift promise” and that Timothy had
no economic interest in its performance; under this theory it was the other Hollaars who
were the third-party “donee beneficiaries” of the promise and had the right to sue for its
breach.8 The Restatement observes that “[i]f the promisee has no economic interest in the
performance, as in many cases involving gift promises, the ordinary remedy of damages
for breach of contract is an inadequate remedy, since only nominal damages can be




       4
            Jacob v. State, D ep’t of H ealth & Soc. Servs., Office of Children’s Servs.,
177 P.3d 1181, 1184 (Alaska 2008) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
       5
              In re Protective Proceedings of W.A., 193 P.3d 743, 748 (Alaska 2008).
       6
              Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008).
       7
              Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002).
       8
               RESTATEMENT (SECOND ) OF CONTRACTS § 302 cmt. c (1981).

                                               -5-                                  6761

recovered,” and “[i]n such cases specific performance is commonly appropriate.”9 Citing
this Restatement provision, Ronald contends that Timothy, as merely the gift promisee,
can only recover nominal damages or bring suit for specific performance, an equitable
remedy.
             But Timothy’s economic interest in payment of the loans is obvious: he is
the named payee on the promissory notes. Ronald and Carmen promised to repay him the
money. Whether the funds came to Timothy originally from a bank or from other family
members, it is undisputed that he is the one who transferred the funds to Ronald and
Carmen and who secured, by contract, the right to repayment. Timothy can sue to collect
the loans.
             We also reject the argument that the Hollaars are properly characterized as
donee beneficiaries of the loan contract with Ronald and Carmen. The Hollaars had a
separate legal relationship with Timothy, either creditor-borrower or principal-agent. If
the Hollaars are viewed as Timothy’s creditors, they loaned him money in exchange for
his promise to pay them back when he was repaid by Ronald and Carmen. We have
recognized the “established rule . . . that ‘a contract to provide a borrower with funds to
pay his debts does not give creditors a right to enforce the contract as third party
beneficiaries.’ ”10 A creditor can sue to enforce the contract only where the payor
promises to make payment directly to the creditor.11 Ronald and Carmen promised to pay
Timothy, not the Hollaars. Although the Hollaars ultimately benefitted from the loans’



       9
              Id. at § 305 cmt. a.
       10
            Alaska Cont’l, Inc. v. Trickey, 933 P.2d 528, 533 (Alaska 1997) (quoting
Exch. Bank & Trust Co. v. Lone Star Life Ins. Co., 546 S.W.2d 948, 950 (Tex. Civ. App.
1977)).
       11
              Id.

                                            -6-                                      6761

repayment, they were not intended beneficiaries of the promises made by Ronald and
Carmen and could not have sued to enforce those promises.
             We could alternatively view Timothy as the Hollaars’ agent for the purpose
of making and collecting on the loans; that is how Timothy’s complaint characterizes his
role, and Ronald urged the court to deem this to be judicially admitted. If Timothy is the
Hollaars’ agent, the Hollaars are not third-party beneficiaries of the loan to Ronald but
instead are the actual parties in interest.12 But this does not mean Timothy may not sue
for damages. An agent who is the promisee on a contract between his principal and a
third party may maintain an action for breach of contract in his own name.13 Even if
Timothy is the promisee on the loans only as the Hollaars’ agent, he has the right to sue
for repayment. The Restatement observes that “[i]f the agent brings an action in his own
name but on account of the principal, he sues as a fiduciary and hence he recovers the full
measure of damages although he is personally caused no pecuniary loss by the failure of
the third person to perform.”14 Thus, under an agency theory, too, Timothy was entitled




       12
             RESTATEMENT (SECOND ) OF A GENCY § 140 (1958); RESTATEMENT
(SECOND ) OF CONTRACTS § 2(4) (1981).
       13
               RESTATEMENT (SECOND ) OF A GENCY § 363 (“An agent who makes a
contract on behalf of a principal cannot maintain an action thereon in his own name on
behalf of the principal although authorized by the principal to bring suit, unless the agent
is a promisee or transferee.”) (emphasis added); id. at § 364 (“A person with whom an
agent makes a contract on behalf of a principal is subject to liability in an action brought
thereon by the agent in his own name on behalf of the principal if the agent is a party
promisee.”) (emphasis added).
       14
              Id. at § 364 cmt. k.

                                            -7-                                       6761

to recover full damages regardless of the origins of the funds that were loaned to Ronald
and Carmen.15
              Ronald argues that he will be subject to double liability if Timothy is
allowed to recover, because he theoretically will be liable both to Timothy and to the
other Hollaars for the same funds. Ronald’s fears are unfounded. As discussed above,
if the Hollaars are viewed as Timothy’s creditors, they have no direct interest in his loans
to Ronald and cannot sue to collect them. If Timothy made the loans as the Hollaars’
agent, then he sued as their agent and takes the recovery as a fiduciary for the Hollaars,
who cannot collect the same funds from Ronald again.
       B.	    The Trial Court Was Not Required To Make Specific Findings Of Fact
              On Timothy’s Promissory Estoppel Claim Or Ronald's Unclean Hands
              Defense.
              1.	    Timothy had the right to a jury trial on his promissory estoppel
                     claim because the relief he sought was legal.
              As noted above, the jury found that all four elements of promissory estoppel
existed with regard to the fourth promissory note and therefore found Ronald liable on
the note despite the fact that it had been signed only by Carmen. The trial court made no
separate factual findings on the issue but stated, on the record, that it agreed with the
jury’s decision “in all aspects” and that justice demanded enforcement of Ronald’s
promise. Ronald contends that promissory estoppel had to be decided by the court, not
the jury; that the jury was merely advisory on this issue and Timothy is judicially
estopped from arguing otherwise; and that the court’s oral statement that it agreed with
the jury’s verdict fails to satisfy the requirement of Civil Rule 52(a) that “the court shall



       15
             Ronald also argues that Timothy is not a “holder in due course” of the
promissory notes and therefore holds them subject to various defenses. But Timothy has
not argued that he is a holder in due course, and Ronald’s defenses are unavailing
whether Timothy is a holder in due course or not.

                                             -8-	                                      6761
find the facts specially and state separately its conclusions of law thereon” in any action
tried with an advisory jury.
              Advisory juries are addressed by Civil Rule 39(c), which allows the trial
court to empanel one in an action “not triable of right by a jury.” If Timothy’s promissory
estoppel claim was “triable of right by a jury,” then the jury could not have been advisory;
the claim was properly presented to the jury to decide; and the court’s post-verdict
adoption of the jury’s findings, though undoubtedly prudent for purposes of appellate
review, was unnecessary, making irrelevant the requirement of special findings by the
court under Civil Rule 52(a).
              A civil litigant’s right to a jury depends on the relief sought. “[W]here
equitable relief is sought . . . this court has disallowed the right to a trial by jury. But,
where damages or other relief at law is sought this court has allowed a jury trial.”16 We
treat claims sounding in equity as legal when the litigant seeks a legal remedy.17 In this
case Timothy relied on promissory estoppel, an equitable doctrine, but sought money
damages. He therefore had a right to have a jury decide the claim, and there was no need
for additional findings by the trial court.
              Ronald asserts that Timothy asked the trial court to make an independent
determination of the fourth element of the promissory estoppel doctrine and is now



        16
               Keltner v. Curtis, 695 P.2d 1076, 1079 n.5 (Alaska 1985) (internal citations
omitted).
       17
              Henrichs v. Chugach Alaska Corp., 250 P.3d 531, 539 (Alaska 2011)
(finding no error in trial court’s failure to instruct jury on equitable defenses where
plaintiff sought legal remedy of damages for breach of fiduciary duty); cf. Shields v.
Cape Fox Corp., 42 P.3d 1083, 1092 (Alaska 2002) (holding that in an action by a
village corporation which sought, in part, the removal of a director, the jury verdict on
this issue was merely advisory and the trial court should have entered special findings
as required by Civil Rule 52(a)).

                                              -9-                                      6761

judicially estopped from arguing that the jury was anything other than advisory on this
issue. “Judicial estoppel bars ‘a party from contradicting previous declarations made
during the same or an earlier proceeding if the change in position would adversely affect
the proceedings or constitute a fraud on the court.’ ”18
             In the pretrial exchange on which Ronald relies for this argument, however,
Timothy’s counsel asked that the court “let the jury hear this entire case.” He requested
that the jury be instructed on promissory estoppel and that the court make a determination,
post-verdict, as to whether “it’s going to accept the jury verdict,” all with the goal of
allowing the parties to “address . . . after the fact” whether promissory estoppel was
properly for the court or the jury. The court expressly adopted this prudent approach:
             [H]andling it that way will both preserve any objection
             [Ronald’s counsel] has and also have a complete record, so
             whatever the answer to that question is — I mean, the
             Supreme Court hasn’t answered it yet — they can direct an
             outcome because all the data will be in for them to do either
             outcome.
             In later debate over jury instructions, Timothy’s counsel repeated his
understanding “that everything goes to the jury and [the court] also . . . [was] going to,
you know, make a determination independently.” The court observed that this was “the
safest course.” When Ronald’s counsel argued that there was “no right to a jury trial at
all on promissory estoppel,” the court asked Timothy’s counsel again whether he was
contending that “the jury should decide number 4, whether justice requires enforcement;”
Timothy’s counsel answered, “I do.” Timothy’s position was thus consistent throughout:
that the jury was to decide the entire claim, with the court making a separate finding of


       18
            Bruce L. v. W.E., 247 P.3d 966, 976 n.37 (Alaska 2011) (quoting BLACK ’S
LAW D ICTIONARY 631 (9th ed. 2009)).



                                           -10-                                      6761
the fourth element just in case it was later determined that it was properly for the court,
not the jury, to decide. In short, Timothy’s counsel never made a “declaration,” later
contradicted, that could form the basis for judicial estoppel. Timothy is not estopped from
contending that all elements of the promissory estoppel doctrine were properly for the
jury.
                2.	   The trial court was not required to make special findings with
                      regard to Ronald’s unclean hands defense.
                Ronald also argues that the trial court erred in its handling of his unclean
hands defense. 2 Ronald describes the basis of his defense as “Timothy’s bad conduct .
. . in entering into an illegal and void deed of trust with Carmen” in December 2006, thus
clouding title and unduly complicating the property division in the divorce. Ronald
argues that Civil Rule 52(a) required the trial court to make special findings of fact when
rejecting the unclean hands defense.
                We disagree. Rule 52(a) requires the trial court to make such findings only
when a party has properly asserted the defense and presented evidence to support it.19
Ronald did neither. First, unclean hands is an equitable doctrine that bars claims in
equity.20 The promissory estoppel claim against Ronald was a claim at law because it
sought legal relief, as explained above,21 and unclean hands was not available to Ronald
as a defense.
                Second, Ronald has presented no evidence that would support the defense.
“To successfully raise the unclean hands defense under Alaska law, a defendant must


        19
                 Henrichs, 250 P.3d at 540.
        20
             Shears v. Myers, 280 P.3d 552, 558-59 (Alaska 2012) (holding that unclean
hands is an equitable defense that applies to equitable claims).
        21
              Gudenau v. Bang, 781 P.2d 1357, 1363 n.9 (Alaska 1989) (holding that
equitable defenses do not apply to claims at law).

                                              -11-	                                   6761

show: (1) ‘that the plaintiff perpetrated some wrongdoing’; and (2) ‘that the wrongful act
related to the action being litigated.’ ”22 In Henrichs, the subject of the litigation was
“events during the six months in 2004 when Henrichs served as chairman of the board of
directors,” and we held that alleged wrongdoing in a later board election was not “related
to the action being litigated” and therefore did not support the defense.23 So too here.
Ronald raised unclean hands as a defense to Timothy’s attempt to collect on the four
promissory notes, the last of which was signed in August 2006, four months before the
allegedly wrongful act, the signing of the deed of trust. When the case went to trial,
Timothy’s rights under the deed of trust had already been determined; the deed of trust
was void, and he was proceeding as an unsecured creditor. The unclean hands defense
was not related to the remaining issue, the enforceability of the earlier promissory notes.
             For both of these reasons, the trial court did not err by failing to make
special findings on the unclean hands defense.
      C.     The Attorney’s Fees Award Was Not An Abuse Of Discretion.
             Finally, Ronald argues that the trial court abused its discretion when it
decided that Timothy was the prevailing party. “A prevailing party is ‘one who
successfully prosecutes the action or successfully defends against it, prevailing on the
main issue, even though not to the extent of the original contention.’ ”24 Ronald contends
that one of the main issues in the case was the ownership of the Goldstream property, on
which he prevailed.


       22
            Henrichs, 250 P.3d at 540 (quoting Knaebel v. Heiner, 663 P.2d 551, 554
(Alaska 1983)).
       23
              Id. at 540-41.
       24
            Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273
P.3d 1123, 1126 (Alaska 2012) (quoting K & K Recycling, Inc. v. Alaska Gold Co., 80
P.3d 702, 721 (Alaska 2003)).

                                           -12-                                      6761

                Timothy sued to recover on the debt. Ownership of the Goldstream property
was at issue only because Timothy alleged that the property secured the debt. Although
it is true, as Ronald observes, that Timothy was found to have no security interest in the
property because the deed of trust was void, Timothy nonetheless recovered the total
amount of the debt, in excess of the property’s value. Even if ownership of the
Goldstream property is “a main issue” in the case, as Ronald urges, the trial court did not
abuse its discretion when it found on these facts that Timothy was entitled to prevailing-
party status.
V.     CONCLUSION
                We AFFIRM the decision of the superior court.




                                            -13-                                     6761

