dissenting.
I dissent from the court’s holding that Wickwire was, as a matter of law, guilty of malpractice.1
*1991. IS THERE AN UNDISPUTED FACTUAL BASIS FOR CONCLUDING THAT WICKWIRE WAS NEGLIGENT AS A MATTER OF LAW?
Assuming the propriety of this court taking judicial notice of material not presented to the superior court, in my view genuine issues of material fact preclude our summary disposition and necessitate a remand.2 In my opinion the factual content of the critical conversation between Hosley and Wickwire relating to the former’s alleged anticipatory repudiation cannot be established with the degree of certainty necessary for summary disposition by our consideration of Wickwire’s brief in Drake v. Hosley.3
In Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986), this court stated the relevant facts of the Hosley-Wickwire conversation as follows:
On April 11, Wickwire called Hosley to set up the closing. Hosley told Wickwire that the buyers could not close that day because they did not have the money and would not have it until May 1.
In its Memorandum Decision and Order granting Wickwire’s summary judgment motion, the superior court further found that
Wickwire indicated to Hosley that he viewed these statements as an anticipatory repudiation of the agreement and that he would advise Drake to sell the property to the other interested buyers.4
Given the foregoing I cannot agree with the court’s summary disposition of the issue of Wickwire’s alleged malpractice. Assuming this court can take judicial notice of the facts of the Wickwire-authored brief in Drake v. Hosley, I am nevertheless of the view that what was said at the Hosley-Wickwire conversation must be determined by the superior court after a hearing.
II. ASSUMING THE FACTS OF THE CONVERSATION WERE UNDISPUTED, WAS WICKWIRE NEGLIGENT AS A MATTER OF LAW?
Assuming, arguendo, that the description of the Hosley-Wickwire conversation set forth in Wickwire’s brief in Drake v. Hosley is controlling, I nonetheless cannot agree with the court’s holding that “Wick-wire’s negligence in this case was in advising precipitate conduct in the face of an ambiguous statement which was insufficient to indicate that the buyers would breach the contract.”
*200A. Did An Anticipatory Repudiation Occur?
In my view, Hosley’s representation that his buyers “did not have the money but would need until May 1, to get it” constituted an unambiguous expression of intent not to comply with the terms of the contract. No more is required for an anticipatory repudiation to have occurred. The established common law rule is that when a statement amounts to an expression of intention not to perform except on conditions which go beyond the terms of the contract, repudiation occurs. See, e.g., Neal-Cooper Grain Co. v. Texas Gulf Sulphur, 508 F.2d 283 (7th Cir.1974) (construing Uniform Commercial Code). In the context of the instant case, I believe Hosley’s language was “sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform.” Restatement (Second) of Contracts (1981), § 250 Comment b (1981). I am persuaded that on the basis of this record a trier of fact could find that a reasonable seller would be justified in believing that the buyer intended to breach, and that the normal remedies for anticipatory repudiation should therefore accrue.
Furthermore, in my opinion Hosley’s reply to Wickwire’s request for assurances did not work a retraction of the anticipatory repudiation precisely because it was, as the court notes, equivocal. Cf. U.C.C. § 2-611; AS 45.02.611(b) (requiring a clear retraction of anticipatory repudiation).5 The fact that Hosley’s second statement was ambiguous, although it prevented a retraction of the prior repudiation from occurring, should not be construed to have rendered the original repudiation itself equivocal.
Accordingly, I dissent.
. The focus of my dissent is limited to this holding. I do agree with the court’s acceptance of the rule adopted by the superior court "requiring expert evidence to establish a breach of an attorney’s duty of care, except in non-technical situations where negligence is evident to lay people or where the fault is so clear as to constitute negligence as a matter of law.”
. The court holds that Wickwire was negligent as a matter of law, and in so holding reverses the superior court’s grant of summary judgment in Wickwire’s favor. Thus, the court's position is that there is no genuine issue of material fact concerning the question of Wickwire’s negligence. See Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986) (In reviewing the grant of a motion for summary judgment we are bound to take that view of the facts which most favors the non-movant in determining whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law.).
Although I agree that summary judgment was improperly granted to Wickwire (because the content of the crucial conversation has not been established), in my view this very factual uncertainty precludes holding Wickwire negligent as a matter of law. The factual content of the critical conversation has not been established. Taking the view of the facts most favorable to Wickwire leads me to conclude that summary disposition of the question of Wickwire’s negligence is inappropriate.
. In his brief in Drake v. Hosley, Wickwire’s rendition of his conversation with Hosley was as follows:
[0]n the morning of April 11 [Wickwire] called Hosley to select a specific time and place for closing. But Hosley’s response was that his buyers could not close on that day as they did not have the money but would need until May 1, to get it. Wickwire asked Hosley if the problem was just getting the time to get the money out of the bank or did they not have the downpayment. Hosley replied that the buyers in fact had the money but were "resisting the pressure to close."
. Wickwire filed an affidavit in the superior court in which he averred in part that:
On or about April 11, 1984, I called Hosley concerning the time for closing on that particular date. At that point, he told me that the buyers could not close on the 11th because they did not have the money for the down payment, i.e., |33,000, and would not have it until May 1, 1984 ... at that time, I also told Hosley that I was going to tell Drake that the buyers were unable to perform and he would be free to sell to other interested buyers.
. After Hosley said his clients were not ready with the money, Wickwire asked Hosley if the problem was just getting the time to get the money out of the bank or did they not have the down payment. In so inquiring, Wickwire clearly sought further assurances that the contract would be performed. Moreover, having sought assurance that the contract would be honored, Wickwire received none. To Wick-wire’s inquiry about the source of the problems with the money, we are told, "Hosley replied that the buyers in fact had the money but were 'resisting the pressure to close.'”