## Facts

- Paul Drake owned land in North Pole, Alaska, and retained attorney Thomas Wickwire in connection with a planned sale.
- Drake signed an exclusive listing agreement providing a 10% commission if the broker produced a buyer willing and able to purchase on Drake’s terms or if Drake entered a binding sale during the listing term.
- On March 23, 1984, Drake and three buyers signed an earnest money receipt requiring closing “within 10 days of clear title” and “ASAP, 1984,” with time of the essence; an addendum required Drake to pay the 10% commission.
- Title work revealed an encumbrance in favor of Drake’s ex-wife; Wickwire arranged a discounted settlement requiring payment by April 11, 1984, and communicated that the judgment would be paid from closing proceeds.
- On April 11, Wickwire contacted the broker to schedule closing and was told the buyers could not close that day and “would need until May 1,” while also being told the buyers had the money but were “resisting the pressure to close.”
- Based on that conversation, Wickwire advised Drake to call off the sale, sent a letter withdrawing Drake’s offer, and Drake sold the property on April 12 to different buyers through another broker.
- On April 12, the original broker tendered the original buyers’ down-payment checks to close; Wickwire refused due to the substitute sale.
- Drake did not pay the original broker’s commission and was later held liable for it in prior litigation.
- Drake then sued Wickwire for legal malpractice, alleging negligent advice that Drake could terminate without liability.

## Issues

1. Whether the buyers’ statements about needing more time to close, while having the money, constituted a definite anticipatory repudiation permitting Drake to treat the contract as breached.
2. Whether, in the malpractice action, expert testimony was required to establish breach of the attorney’s standard of care or whether negligence could be found as a matter of law.

## Decision

- The Alaska Supreme Court reversed summary judgment for Wickwire and remanded.
- The buyers’ statements did not amount to a definite and unequivocal anticipatory repudiation.
- Wickwire was negligent as a matter of law in advising Drake that the contract could be terminated and the property sold to others based on that ambiguous communication.
- Expert testimony was not required because the error involved straightforward contract principles that a jury could apply once instructed on the law.

## Legal Principles

- Anticipatory repudiation requires a definite and unequivocal manifestation of intent not to perform; equivocal statements seeking delay or expressing reluctance are insufficient.
- When confronted with ambiguous conduct suggesting possible nonperformance, the proper response is to seek clarification or adequate assurances rather than immediately treating the contract as repudiated.
- In legal malpractice, expert testimony is generally required to prove professional negligence, but it is unnecessary when the alleged breach is clear and understandable to lay jurors once the governing legal rule is explained.

## Conclusion

The court held that an attorney’s advice to terminate a real estate sale based on an ambiguous request for more time misapplied basic anticipatory repudiation doctrine, constituting negligence as a matter of law, and that the malpractice claim could proceed without expert testimony.


Drake v. Wickwire, 795 P.2d 195 (Alaska 1990)