Vest v. First National Bank of Fairbanks

659 P.2d 1233, 1983 Alas. LEXIS 387

• Court: Alaska Supreme Court
• Decided: February 25, 1983
• Docket: 5969
• Status: Published

Opinions

OPINION

PER CURIAM.

Cecil Vest asserts that Wayne Heston, former vice president of First National Bank of Fairbanks, converted payroll checks endorsed by Vest for deposit to his bank account and passed forged checks written on Vest’s account. Vest further alleges that when he approached Heston, in his capacity as a bank officer, to inquire about shortage in the account, Heston fraudulently concealed his own wrongdoing and misrepresented that the bank would repay the shortages due to the forged checks. Vest has submitted affidavits establishing the substance of Heston’s statements to him and the other material allegations of his complaint.

Vest avers that these events took place in 1976 and 1977. Applying the general two year statute of limitations applicable to causes of action sounding in tort,¹ the superior court granted summary judgment to First National Bank and Daniel Talcott. We reverse upon the ground that the six year limitation set forth in AS 09.10.050(3) applies.²

That statute provides that:

No person may bring an action ... (3) for taking, detaining, or injuring personal property, including an action for its specific recovery ... unless commenced within six years.

By its terms, AS 09.10.050(3) governs actions in trover for conversion. See Teren v. Howard, 322 F.2d 949, 954 (9th Cir.1963) (applying identical Oregon statute); Deetz v. Cobbs & Mitchell Co., 253 P. 542, 543 (Ore.1927). An action by the payee of a check against a bank failing to deposit the check sounds in conversion, Chemical Workers Basic Union Local No. 1744 v. Arnold Savings Bank, 411 S.W.2d 159, 162 (Mo.1966), and therefore falls under AS 09.-10.050(3). See Fabricon Products v. United California Bank, 264 Cal.App.2d 113, 70 Cal.Rptr. 50, 53 (Cal.App.1968) (interpreting similar statute in like circumstances). We see no reason to suspect that AS 09.10.-050(3) does not mean exactly what it appears to mean. Inasmuch as the applicable period of limitations is six years, the action was timely and summary judgment inappropriate.

REVERSED and REMANDED.³

1 . The parties apparently assumed that AS 09.-10.070 applied. That statute provides:

No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise ....

(Emphasis added.)

2 . AS noted by our dissenting colleague, the applicability of the six year statute of limitations, AS 09.10.050(3), is an issue not raised by the parties. The issue was raised by this court, sua sponte, in an order for further briefing. That order provided, partly: “[T]he parties shall address the following question: Is appellant’s action below governed by the six year period of limitation contained in AS 09.10.-050(3), rather than the two year period prescribed by AS 09.10.070?” (Emphasis in original.) Supplemental briefs were filed in conformity with our order and, therefore, it is no longer correct to say, as does the dissent, that “the parties have premised all of their arguments on the assumption that the applicable statute of limitations is the two year period set forth in AS 09.10.070.”

Ordinarily, we will not consider an issue unless it has been argued in the trial court and properly raised on appeal, Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977), unless it amounts to plain error. Burford v. State, 515 P.2d 382, 383 (Alaska 1973). Where, however, an issue that has not been raised involves a question of law that is critical to a proper and just decision, we will not hesitate to consider it, particularly after calling the matter to the attention of the parties and affording them the opportunity to brief the issue. See State v. First Nat’l Bank, Slip Op. at 44 (Alaska, December 3, 1982) (trial court may inject a new theory into a case where necessary to accomplish a proper and just disposition); Stone v. Stone, 647 P.2d 582, 585-86 (Alaska 1982) (appeal disposed of under Civil Rule 60(b), a subject not raised by the parties); Dresser Industries v. Alaska Dept. of Labor, 633 P.2d 998, 1004-06 (Alaska 1981) (this court not bound by stipulation as to the controlling law); Libby v. Dillingham, 612 P.2d 33, 41-42 (Alaska 1980) (decision based on construction of a statute contrary to apparent concession by appellant’s counsel).

3 .One of the issues yet to be decided is whether AS 45.04.406 precludes appellant’s action. Resolution of that issue depends upon factual determinations to be made following our remand.