OPINION
EASTAUGH, Justice.
I. INTRODUCTION
We address here claims arising from a letter sent and statements made by Alyeska Pipeline Service Company during negotiations for a proposed three-way transaction involving Alyeska, Sea Hawk Seafoods, Inc., and Valdez Fisheries Development Association, Inc. Because Valdez Fisheries' complaint against Alyeska did not state a claim on which relief could be granted, we hold that it was not error to dismiss Valdez Fisheries' claims. And because there are no genuine issues of material fact, we hold that it was not error to dismiss Sea Hawk's claims on summary judgment. We therefore affirm in all respects.
II FACTS AND PROCEEDINGS
In December 1993 James McHale, an Alyeska Pipeline Service Company manager, made a presentation to the Valdez City Council asking the city to provide a wildlife rehabilitation center for Alyeska's use in event of an oil spill.1 In a later city council meeting, Alyeska faced strong opposition from the business community, which wanted Alyeska to obtain the center from the private sector rather than the city. Raymond Cesar-ini, president of Sea Hawk Seafoods, then suggested to McHale that Alyeska buy Sea Hawk's plant for use as a rehabilitation center. McHale said that Alyeska "was already thinking favorably of using" Valdez Fisheries Development Association "for the project" [663]*663and suggested that Sea Hawk contact Valdez Fisheries.
Cesarini then offered to sell Sea Hawk's plant to Valdez Fisheries so Valdez Fisheries could use the plant in its proposal to Alyeska. In January 1994 Cesarini again spoke with Alyeska's McHale. McHale again "stated that Alyeska was thinking favorably of using [Valdez Fisheries] for the project" and suggested that Cesarini speak with Valdez Fisheries about a " 'win, win' arrangement whereby Sea Hawk would sell its processing plant to [Valdez Fisheries] and [Valdez Fisheries] in turn would lease the plant to Alyeska." McHale described the arrangement as mutually beneficial because it would allow Alyeska to meet its environmental obligations, Sea Hawk to absolve itself of existing liabilities, and Valdez Fisheries to have a source of income to help support its fish hatchery operations.
Cesarini met with McHale for a third time in mid-January 1994 and expressed concern about selling the plant to Valdez Fisheries rather than directly to Alyeska because of Valdez Figheries' financial problems. Cesar-ini declared that McHale "confirmed that [Valdez Fisheries] would get the Alyeska contract, utilizing the Sea Hawk plant." Cesarini later declared that McHale "also promised me that, if for any reason Alyeska did not lease the Sea Hawk plant from [Valdez Fisheries], ... Alyeska would lease the Sea Hawk plant directly from Sea Hawk on the same terms and conditions."
In January 1994 Alyeska sent many companies, including Valdez Fisheries, a letter soliciting proposals for the wildlife rehabilitation center. Soon thereafter Valdez Fisheries and Sea Hawk signed an agreement for the sale of the Sea Hawk facility to Valdez Fisheries for $2.5 million, contingent upon Alyeska awarding the wildlife rebabilitation center contract to Valdez Fisheries. The Sea Hawk-Valdez Fisheries sales agreement was not to become "effective" until Valdez Fisheries gave Sea Hawk written notice that Alyeska had approved Valdez Fisheries' proposal to lease the property to Alyeska as a wildlife rehabilitation center. The contract permitted Sea Hawk to revoke the agreement before the effective date upon five-days notice. After the effective date, Sea Hawk would no longer be able to revoke the agreement, but the purchase price would increase $500 per day until closing.
Valdez Fisheries submitted a wildlife rehabilitation center proposal to Alyeska on January 25, 1994. In April 1994 Alyeska informed all bid applicants, including Valdez Fisheries, that it was "unable to select a contractor from the proposals received"; it invited bidders to "reconsider the cost proposed and if [their] review result[ed] in a cost reduction, [to] please submit a revised cost proposal." Valdez Fisheries then submitted a revised proposal, offering three alternative leases, a five-year lease at $43,000 per month, a seven-year lease at $40,000 per month, -or a ten-year lease at $35,000 per month.2
By letter of May 6, 1994 Alyeska responded to Valdez Fisheries' "bid submittals" stating:
We have completed our review of the revised proposals received in response to our invitation TAPS/5890 for A150 Wildlife Rehabilitation Center.
This is to inform you that based on a thorough evaluation of all factors, you have been selected as the winning bidder. Your proposal was deemed to best meet our 'requirements for this facility.
We intend to begin the process of negotiating a contract as soon as possible For your planning purposes, we would like to begin discussions the week of May 16, 1994. You will be contacted by telephone to schedule the place and time to meet. We look forward to a successful association between our two companies. This facility will be a welcome addition to our oil spill contingency program.[3]
(Emphasis added.) |
Valdez Fisheries faxed a copy of Alyeska's letter to Sea Hawk; Valdez Fisheries and Sea Hawk thereafter acted as if the effective [664]*664date of their contract for sale had been triggered.
In June 1994 Alyeska and Valdez Fisheries began meeting to negotiate the contract. Valdez Fisheries prepared a draft of the lease agreement and sent it to Alyeska to serve as a framework for the meetings to follow. But at a July 7, 1994 meeting,e Alyes-ka advised Valdez Fisheries that it was reanalyzing the costs of the wildlife rehabilitation center and declined to discuss further the finalization of the lease agreement. At this meeting, Alyeska also asked Valdez Fisheries about "the status of [the] negotiations" with Sea Hawk.
In a July 29, 1994 letter, Alyeska advised Valdez Fisheries not to expend funds on developing the center until Alyeska notified it to proceed. The letter also included a revised program and facility space requirements. On August 8, 1994 Alyeska sent Valdez Fisheries a letter stating that Alyeska had "chosen to pursue other avenues to accomplish our objective" and that "further negotiations are unnecessary."
Sea Hawk sued Valdez Fisheries alleging breach of contract and promissory estoppel. Valdez Fisheries answered and filed a third-party complaint against Alyeska, claiming, among other things, breach of contract and promissory estoppel. Sea Hawk then asserted direct claims against Alyeska. Superior Court Judge John Reese ultimately dismissed all of Valdez Fisheries claims against Alyeska under Alaska Civil Rule 12(b)(6), and granted summary judgment to Alyeska on Sea Hawk's claims. The case between Valdez Fisheries and Sea Hawk went to trial, and the jury returned a large verdict for Sea Hawk. Sea Hawk and Valdez Fisheries have since settled their disputes, leaving the Sea Hawk-Alyeska disputes and the Valdez Fisheries-Alyeska disputes.
Valdez Fisheries appeals the Rule 12(b)(6) dismissal of its contract and promissory es-toppel claims against Alyeska, the denial of leave to amend the third-party complaint to assert newly discovered claims, the refusal to sanction Alyeska for improper discovery conduct, and the limitation of Valdez Fisheries damages to its out-of-pocket costs in negotiating with Alyeska, Sea Hawk appeals the summary judgment dismissing its claims of promissory estoppel, negligent misrepresentation and omission, third-party beneficiary, and breach of duty to negotiate in good faith. Alyeska appeals the superior court's denial of Alyeska's request for an enhanced attorney's fees award.
III. DISCUSSION
A. Standard of Review
We review the dismissal of Valdez Fisheries claims for failure to state a claim de novo.4 We "only consider the material contained in the pleadings5 of Valdez Fisheries,5 construing the third-party complaint against Alyeska in the light most favorable to Valdez Fisheries, and presume the pleading's allegations to be true.6 We will affirm the dismissal of Valdez Fisheries third-party complaint for failure to state a claim only if "it appears beyond doubt" that Valdez Fisheries can prove no set of facts which would entitle them to relief,7
We review the dismissal of Sea Hawk's claim on summary judgment denovo.8 A summary judgment movant must establish that there "are no genuine issues of material fact and that it is entitled to judgment as a matter of law.9 We draw all reasonable inferences in favor of Sea Hawk-the nonmoving party.10
[665]*665B. It Was Not Error To Dismiss Valdez Fisheries' Contract Claim Under Civil Rule 12(b)(6).
The superior court granted Alyeska's Civil Rule 12(b)(6) motion and dismissed Valdez Fisheries' contract claim, holding that no contract was formed. Valdez Fisheries argues that this was error because its third-party complaint against Alyeska alleged an agreement with terms that are sufficiently definite and certain for contract formation.
Rule 12(b)(6) dismissal is appropriate where the complaint, given the benefit of all reasonable inferences, "presents no set of facts justifying recovery." 11 A valid contract requires "unequivocal acceptance by the of-feree." 12 We therefore look to see whether Valdez Fisheries' third-party complaint directly or inferentially contains any factual allegations which could be considered an unequivocal expression of acceptance.
The pertinent allegations are found in the text of Alyeska's May 6, 1994 "winning bid" letter, set out verbatim in the third-party complaint.13 The letter's second paragraph contains the language most strongly supporting Valdez Fisheries contract claim. It states, "you have been selected as the winning bidder." But this language does not unequivocally express acceptance because it is susceptible to at least two alternative interpretations. These words could mean either "we accept your bid 'as written," or "we have chosen you as the contractor with whom we will negotiate." The remainder of the letter fully resolves this ambiguity, The letter's next paragraph, also set out in the third-party complaint, states that "[wle intend to begin the process of negotiating a contract as soon as possible." This passage requires a conclusion that Alyeska was not communicating an unequivocal acceptance of a Valdez Fisheries offer.
Moreover, Valdez Fisheries' proposal contained three alternative lease proposals that differed significantly with respect to the duration and monthly rent for any lease. Even if we were to interpret Alyeska's letter to say unequivocally that "we accept your offer," we could not say which of the three offers it was accepting, and whether Alyeska was agreeing to lease the property for five years, seven years, or ten years, with monthly rent payments of $48,000, $40,000, or $35,000, respectively. Duration and price are important contract terms.14 Such great [666]*666differences in important contract terms preclude finding a meeting of minds.15 The significant differences in the alternatives confirm that the May 6 letter was not an unequivocal acceptance but, at most, was an agreement to negotiate.16
Valdez Fisheries argues that an internal Alyeska document-a May 1994 Authorization for Expenditure-obtained in discovery after the contract claim was dismissed resolves the ambiguity and substantiates Alyeska's intent to accept one particular offer. Valdez Fisheries theorizes that the Authorization for Expenditure set out the material price and duration terms by choosing the five-year, $48,000 payment alternative, thus removing any uncertainty about the contract terms. But Alyeska did not send this document to Valdez Fisheries in 1994. Indeed, Valdez Fisheries asserts on appeal that "Alyeska's execution of the [Authorization] was unknown" to Valdez Fisheries until 1997. Therefore, this internal memorandum could not have communicated to Valdez Fisheries Alyeska's acceptance of one of the offers and it could not have made certain terms that were otherwise unenforceably uncertain.17
Finally, Valdez Fisheries complaint does not permit a reasonable inference that other facts not specifically plead might demonstrate unequivocal acceptance. We could hypothesize that Alyeska might have communicated acceptance via some other unspecified document sent in the period between the "winning bid" letter and the termination of contract negotiations.18 In this case, however, the superior court was not required to make such a strained inference to salvage Valdez Fisheries' complaint.19
We cannot hold parties to a standard that requires them to effectively plead evidence prior to conducting discovery.20 But even without discovery, Valdez Fisheries should have had access to any documents that might have supported its claim that Alyeska accepted an offer. As explained above, documents not transmitted to Valdez Fisheries before Alyeska terminated contract negotiations could not demonstrate unequivocal acceptance.21
Further, to the extent that Valdez Fisheries argues that dismissal of its contract claim was premature because it was entered prior to discovery, this argument must be rejected because subsequent litigation allowed Valdez Fisheries to correct any pleading deficiency and avoid any prejudice. Although the court dismissed the contract claim in 1995, it did not enter final judgment for Alyeska until July 1997. In the interim, Valdez Fisheries engaged in extensive discovery on its remaining claims, including its promissory estoppel and promise-to-negotiate claims. Because these claims depended [667]*667upon similar facts, Valdez Fisheries effectively remained free to continue discovery that might have helped it revive its dismissed contract claim.
Valdez Fisheries indeed discovered facts which it relied upon in 1997 when it sought to revive its contract claim in its proposed see-ond amended third-party complaint. But the second amended third-party complaint and the supporting motion papers submitted after eighteen additional months of discovery and investigation failed to point to any Alyes-ka document transmitted in 1994 to Valdez Fisheries, other than the "winning bid" letter discussed above, that arguably constituted an unequivocal acceptance of one of Valdez Fisheries' three offers.22 Thus, even assuming the Rule 12(b)(6) dismissal was premature, it did not prejudice Valdez Fisheries. Valdez Fisheries had ample opportunity before final judgment to amend and reinstate its contract claim if it discovered relevant facts supporting that claim.
While "the [Rule 12(b)(6)] threshold may be low, it is real-and it is the plaintiff's burden to take the step which brings his case safely into the next phase of litigation." 23 The facts alleged in the original and the second amended third-party complaints do not permit an inference of unequivocal acceptance. Because there was no acceptance, there is no contract upon which Valdez Fisheries can sue. On the face of the pleadings, therefore, Valdez Fisheries' contract claim was fatally flawed.
Accordingly, we affirm the superior court's dismissal of Valdez Fisheries' contract claim and Sea Hawk's third-party beneficiary claims.24
C. As a Matter of Law, the Agreement to Negotiate Fails for Lack of Specificity.
Valdez Fisheries asserts that even if Alyeska's May 6 letter was not an acceptance of the bid offer, it was a binding agreement to negotiate. We will enforce agreements to negotiate.25 Participation in negotiations, however, "does not necessarily mean that the parties will be able to agree on mutually-acceptable terms,"26 and we will therefore enforce an agreement to negotiate only if it contains "a more specific way to resolve ... differences," such that we are able to discern when the agreement to negotiate has been breached.27 That standard is not met here. At best, the proposal and Alyeska's reply letter are evidence of an agreement to negotiate that fails to spell out a method by which differences are to be resolved. We therefore affirm the superior court's dismissal of Valdez Fisheries agreement-to-negotiate claim.
Even if the agreement-to-negotiate claim were to proceed, Valdez Fisheries would only be entitled to recover costs asso-clated with the negotiations themselves. Since an agreement to negotiate is not an agreement to agree,28 any costs Valdez Fisheries incurred in anticipation of performance were not incurred in reasonable reliance on the agreement to negotiate. Further, any costs incurred in preparing the bid were incurred before Alyeska agreed to negotiate. They are therefore not recoverable under this theory.
Sea Hawk also argues that it has a claim against Alyeska for breach of the duty to negotiate. Like Sea Hawk's third-party beneficiary claim against Alyeska, this claim de[668]*668pends upon Valdez Fisheries' claim because Alyeska never entered into any agreement to negotiate with Sea Hawk. Therefore, our rejection of Valdez Fisheries' duty-to-negotiate claim requires us to affirm the dismissal of Sea Hawk's duty-to-negotiate claim.
D. The Superior Court Did Not Err in Dismissing Valdez Fisheries' Promissory Estoppel Claims.
Valdez Fisheries makes two separate promissory estoppel arguments. First, it argues that Alyeska's "congratulations, you are the winning bidder" letter constituted a promise; second, it argues that Alyeska orally promised that "if it accepted [Valdez Fisheries'] proposal, it would lease the Sea Hawk facility from [Valdez Fisheries]." Under Alaska law, a promise that induces action will bind the promisor only if it satisfies all four elements of promissory estoppel:
(1) The action induced amounts to a substantial change of position; (2) it was either actually foreseen or reasonably foreseeable by the promisor; (@) an actual promise was made and itself induced the action or forbearance in reliance thereon; and (4) enforcement is necessary in the interest of justice.[29]
We address each alleged promise separately.
1. The alleged written promise contained in Alyeska's May 6 letter
When a promissory estoppel claim is made in confunction with a breach of contract claim, the "actual promise" element of promissory estoppel is "analytically identical to" the " 'acceptance' required for a contract." 30 Were it otherwise, promissory es-toppel, which is intended "to enable courts to enforce contract-like promises made unenforceable by technical defects or defenses," 31 would become a device by which parties could be held to contracts they did not accept. As we have already held, Alyeska's May 6 letter did not accept an offer to contract. It therefore was not an "actual promise," and thus fails as a matter of law to satisfy the "actual promise" element of promissory estoppel.
The letter is also deficient as a promise to negotiate. Regarding negotiations, the letter states only that "[wle intend to begin the process of negotiating a contract as soon as possible." This is a statement of present intent, not a promise.32 This statement therefore also fails as a matter of law to satisfy the "actual promise" element of promissory estoppel.
Moreover, even treating this statement as a promise, it would not be sufficient, ly definite to allow enforcement. At best, it is a promise "to begin negotiations." It appears from the third-party complaint that negotiations were begun. To be enforceable, a promise to negotiate must spell out the method by which a court will determine whether or not the promise was breached.33 Although Davis v. Dykman34 considered only a contract to negotiate, not promissory estop-pel, its reasoning is instructive here. Since the third-party complaint does not plead facts which, if accepted as true, establish a breached promise to negotiate, we affirm the superior court's dismissal of Valdez Fisheries' promissory estoppel claims based on Alyeska's May 6 letter.
2. McHale's alleged promise
Valdez Fisheries third-party complaint alleged that Alyeska's McHale promised in a January 1994 conversation with David Cobb, Valdez Fisheries business manager, that "if Alyeska approved [Valdez Fisheries'] proposal as best meeting Alyeska's requirements, Alyeska would lease the facility from [Valdez Fisheries]."35 Alaska's stat[669]*669ute of frauds renders certain "agreement[s], promise[s], or undertaking[s] ... unenforceable unless [they are] in writing...." 36 The alleged oral promise at issue here falls under the statute of frauds because it is "an agreement for leasing for a longer period than one year ... or of any interest in real property... ." 37
The Restatement (SEconp) or CoNnTRACTS provides that promissory estoppel can bind a promisor notwithstanding the statute of frauds.38 In Alaska Democratic Party v. Rice, we endorsed this view as to employment contracts.39 We explicitly limited this holding to employment contracts, perhaps in recognition of the frequency of oral employment agreements and the extent to which the main terms of an employment contract are generally well understood.40 The present case is markedly different because the duration of the alleged promise is indiscernible.
The statute of frauds serves many purposes. First, it provides certain, consistent, and predictable principles to guide negotiators.41 It recognizes the inherent evidentiary worth of written evidence, and the potential injustice created by relying on the memories of interested parties to provide the exact language of an agreement, which is necessary to discern the limits of the promise.42 It also recognizes the natural tendency of peoples' memories to contour the words they recall to fit their understanding of the agreement.43 The statute of frauds encourages people to commit their agreements to writing, and the process of putting the agreement in writing helps impress upon them the importance of their agreements.44 It reduces litigation over alleged oral contracts.45 Finally, a limited application of exceptions to the statute of frauds preserves the legislative intent behind the statute, and gives effect to the legislative judgment that the benefits conferred by the statute outweigh the potential injustice produced by its application.46
The facts here implicate the concerns motivating the statute of frauds. We therefore decline to extend Alaska Democratic Party to cases involving the sale or lease of real estate, in which the purported oral agreement is ambiguous as to key terms. In such circumstances, promissory estoppel cannot be used to defeat the statute of frauds' requirement that a writing memorialize the parties' agreement. We therefore affirm the superior court's dismissal of Valdez Fisheries' promissory estoppel claims as to the oral promise.
E. The Superior Court Did Not Err in Dismissing Sea Hawk's Promissory Estoppel Claims on Summary Judgment.
Sea Hawk argues that the superior court erred by failing to apply promissory estoppel to negate the effect of the statute of frauds. It reasons that dismissing Sea Hawk's promissory estoppel claim is inconsistent with our holding in Alaska Democratic Party that a promise is enforceable notwithstanding the statute of frauds if it meets the other elements of a promissory estoppel claim.
The superior court granted Alyeska summary judgment on Sea Hawk's [670]*670promissory estoppel claims. Sea Hawk alleges that McHale "specifically promised ... that [Valdez Fisheries] would get the Alyes-ka contract ... if Sea Hawk sold its plant to [Valdez Fisheries]." Sea Hawk also alleges that Alyeska promised that "if for any reason Alyeska did not lease the Sea Hawk plant from [Valdez Fisheries], Alyeska would lease the Sea Hawk plant directly from Sea Hawk on the same terms and conditions." Thus we have alleged promises for the lease of real estate, with substantial ambiguity: as to terms.
The first alleged promise, that Alyeska would lease from Valdez Fisheries, is ambiguous as to the duration and price. It appears to report present intentions rather than promise future actions, and as such it is unenforceable. 47 This reading is supported by the second alleged promise, made in the same conversation, which clearly anticipates Alyeska's refusal to lease from Valdez Fisheries, The second promise is also ambiguous as to the duration and price of the lease, and presumes that a complete, unambiguous agreement would be reached between Alyes-ka and Valdez Fisheries, and that Sea Hawk could simply step into Valdes Fisheries shoes.
Moreover, the promises alleged by Sea Hawk were oral, and implicate the same statute of frauds concerns as the oral promises made to Valdez Fisheries. We hold that promissory estoppel cannot be used to defeat the statute of frauds' requirement that an agreement for a lease with a term that exceeds one year must be in writing where, as here, the purported oral agreement contains substantial ambiguity as to key terms. We therefore affirm the superior court's grant of summary judgment on Sea Hawk's promissory estoppel claims.
F. The Superior Court Permissibly Declined to Sanction Alyeska for Its Conduct in Discovery.
Valdez Fisheries contends that it was error not to sanction Alyeska for failing to produce "crucial smoking gun documents" until less than a month before trial. Valdez Fisheries argues that Alyeska's internal Authorization for Expenditure is particularly significant. The Authorization for Expenditure is an internal Alyeska request for funding for the wildlife rehabilitation center. It summarizes the project, gives reasons for the project, and lists the project costs as $2,580,000 for a five-year lease with a renewal option. McHale signed the Authorization for Expenditure, although the signature lines for the approving president and vice-president are blank,. Valdez Fisheries argues that the Authorization for Expenditure proves which of the three leasing options Alyeska chose, and thus removes any uncertainty about the contract terms.
The superior court declined to sanction Alyeska, holding that the information contained in the document "is not new, doesn't seem to be critical, does not support the claim for relief against Alyeska and there was no improper discovery conduct." We review discovery sanctions for abuse of discretion 48 and findings of fact for clear error.
Valdez Fisheries argument that the Authorization for Expenditure is a "smoking gun" depends on its theory that it provides the missing terms of the lease agreement. As a matter of law, the document is not itself an acceptance because it was never communicated to Valdez Fisheries-the offeror. Valdez Fisheries argues that the document manifests Alyeska's intent as to terms. But the specific terms considered internally by Alyes-ka are irrelevant absent an acceptance.
Valdez Fisheries has not demonstrated that the superior court erred in concluding that the information provided by the newly produced evidence, including the Authorization for Expenditure, was not critical and did not support the claims against Alyeska,. We conclude that it did not abuse its discretion by declining to impose sanctions. We therefore affirm the oral order declining to sanction Alyeska.
[671]*671G. The Superior Court Did Not Improperly Deny Leave to Amend Valdez Fisheries Third-Party Complaint.
Valdez Fisheries moved to amend its third-party complaint against Alyeska, arguing that various internal Alyeska documents supplied the contract terms, and that Alyes-ka misrepresented the status of the project. The superior court found that the proposed amendment would assert new claims for the tort of misrepresentation and for punitive damages, but that the facts giving rise to these claims were "largely coexistent" with the facts giving rise to Valdez Fisheries prior claims, and that there was "no adequate reason" why Valdez Fisheries had not previously asserted the proposed new claims. Noting that trial was to begin in seven weeks, it also found that the resulting cost and preparation time would unduly prejudice Alyeska,. It therefore denied the motion to amend. Valdez Fisheries argues that it was error not to grant its motion.
We review the denial of leave to amend for abuse of discretion49 We will reverse the superior court's order only if we are left with a definite and firm conviction that it erred in its ruling.50
Alaska Civil Rule 15(a) provides that "leave [to amend] shall be freely given when justice so requires." Leave to amend is liberally granted in Alaska.51 But the superior court retains discretion to deny leave to amend on the eve of trial in a situation like this.52
This was Valdez Fisheries third attempt to amend its claims against Alyeska. Valdez Fisheries argues that the claims were newly discovered, but the superior court found that they were based on facts already known to Valdez Fisheries, This finding was not clearly erroneous. Although Valdez Fisheries discovered new details during depositions it took in 1997, and requested and received documents from Alyeska concerning these details, the main thrust of the information was not new. We therefore affirm the superior court's denial of leave to amend the third-party complaint.
Because we have affirmed the superior court's holdings, Valdez Fisheries has no remaining claims against Alyeska. It is therefore unnecessary for us to reach the question whether the superior court erred in limiting Valdez Fisheries' damages to its costs associated with negotiations.
H. The Superior Court Did Not Err in Dismissing Sea Hawk's Negligent Misrepresentation and Omission Claim.
Sea Hawk argues that it was error to dismiss its claim that Alyeska misrepresented its intentions to lease the Sea Hawk facility. Sea Hawk alleges that in January 1994 McHale made promises to Sea Hawk although he knew that Alyeska harbored internal misgivings about the project. Holding that there was no duty to disclose, the superior court dismissed this claim on summary judgment.
The four elements of the tort of negligent misrepresentation are:
First, the party accused of the misrepresentation must have made the statement "in the course of his [or her] business, profession or employment, or in any other transaction in which [s/]he has a pecuniary interest." Second, the representation must supply "false information." Third, there must be "justifil Jable reliance" on the false information supplied. Finally, the accused party must have failed "to exercise reasonable care or competence in obtaining or communicating the information," [53]
[672]*672We do not see how McHale and Cesarini's casual conversations in January 1994, some four months before Alyeska sent its May 6 "winning bid" letter to Valdez Fisheries' proposal, could have created an ongoing duty to advise Sea Hawk of Alyeska's June 1994 misgivings. Sea Hawk has not demonstrated a genuine dispute about whether McHale's alleged January 1994 assurances were false when made. A statement made as to future intentions and actions is not a misrepresentation if it is accurate when it is made, even if future events render it inaccurate.54
Sea Hawk argues that once Alyeska represented its intentions in January, it had a duty to alert Sea Hawk if its intentions changed. Such a holding would stretch the negligent misrepresentation doctrine in Alaska. We have held that "[a) duty to disclose is rarely imposed where the parties deal at arm's length. . .." 55 The dealings between Alyeska and Sea Hawk, as evidenced by the infrequency of their conversations, were at arms length. Sea Hawk has consequently not demonstrated that a reasonable jury could find that Sea Hawk's alleged reliance on these four-month-old assurances was reasonable. There is no issue of fact about whether Alyeska misled Sea Hawk after Alyeska allegedly changed its intentions, because Sea Hawk had not claimed that it made post-change attempts to obtain Alyeska's confirmation of McHale's alleged January representations to Sea Hawk.
Because we find that the evidence in the record would support a limited duty at best, and because Sea Hawk's actions in reliance were not reasonable given the limited nature of this duty, we affirm the superior court's dismissal of Sea Hawk's negligent misrepresentation and omission claim on summary judgment.
I. It Was Not an Abuse of Discretion to Deny Alyeska's Request for Attorney's Fees Exceeding the Usual Twenty Percent.
Alyeska argues on cross-appeal that the superior court erred by awarding Alyeska twenty percent of the fees it had incurred,56 rather than enhanced fees under a percentage exceeding twenty percent.57 We will not reverse an award of costs and fees absent "a clear abuse of discretion." 58 We will not find a clear abuse of discretion unless the award is arbitrary, capricious, manifestly unreasonable, or the result of an impermissible motive.59 An award that tracks the scheduled fee award of Alaska Civil Rule 82 is presumptively valid.60
Alyeska has not demonstrated that awarding twenty percent of its fees was arbitrary, capricious, or manifestly unreasonable. Alyeska's arguments demonstrate, at best, that reasonable minds could disagree about the appropriate amount. The record reveals vigorous litigation which the superior court did not find to be vexatious. Alyeska has not shown that the record compels a finding that Valdez Fisheries and Sea Hawk's actions were excessively litigious or vexatious, and has hence failed to demonstrate a clear abuse of discretion. We therefore affirm the superior court's award of attorney's fees.
IV. CONCLUSION
For these reasons we AFFIRM in all respects.