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Neal & Co. v. AVCP Reg. Housing Corp. (5/19/95), 895 P 2d 497
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
NEAL & COMPANY, INC., an )
Alaska corporation, ) Supreme Court No. S-6123
)
Appellant, ) Superior Court No.
) 4BE-91-37 Civil
) (consolidated with
) 4BE-91-193 Civil)
)
v. )
) O P I N I O N
THE ASSOCIATION OF VILLAGE )
COUNCIL PRESIDENTS REGIONAL ) [No. 4206 - May 19, 1995]
HOUSING AUTHORITY, )
)
Appellee. )
)
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Bethel,
Dale O. Curda, Judge.
Appearances: R. R. De Young, Wade & De
Young, Anchorage, for Appellant. Gregory A.
Miller and Steve Hutchings, Birch, Horton,
Bittner & Cherot, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MOORE, Chief Justice.
I. INTRODUCTION
Neal & Company (Neal) contracted with the Association
of Village Council Presidents Regional Housing Authority (the
Housing Authority) to construct eighty-three single-family homes
in the vicinity of Bethel. The parties dispute whether the
Housing Authority was obligated to supply the sites with a source
of permanent electricity for Neal's use during construction.
Neal appeals from a grant of partial summary judgment
in favor of the Housing Authority. Neal further appeals the
denial of a motion for reconsideration and an order preventing
Neal from introducing evidence at trial pertaining to the
electricity issue. We affirm.
II. FACTS AND PROCEEDINGS
The Housing Authority is a public corporation that
facilitates the construction of housing for Native Alaskans in
rural areas of the state. The organization is funded primarily
by the United States Department of Housing and Urban Development
(HUD). In March 1988, the Housing Authority invited potential
bidders to respond to a standard-form HUD contract offering with
specifications for the construction of eighty-three single-family
homes in the villages of Napakiak, Mekoryuk, Napaskiak, Pitkas
Point, and Oscarville.
Neal was the low bidder among six general contractors
that submitted proposals. The Housing Authority awarded Neal the
contract and directed Neal to begin construction on June 1, 1988.
The contract set completion dates of May 25, 1989, for Mekoryuk
and Pitkas Point, and September 2, 1989, for the remaining three
villages. Soon after Neal was awarded the contract, Neal
notified the Housing Authority that it planned to substantially
complete construction of all housing units early, by December
1988.
With the exception of Oscarville, the construction
sites had not been equipped with permanent electric utility
service at the time Neal was awarded the contract.1 Neal
contends that the Housing Authority was required to equip the
sites with a source of permanent electricity for Neal to use
during construction. The Housing Authority denies this,
maintaining that although it possessed a duty to arrange
permanent electric service for future homeowners, the bid
documents clearly state that Neal was to supply whatever power it
would require during the construction process.
Before contract negotiations were finalized, Neal
sought information concerning what power sources would be
available at the sites. While Neal was preparing its bid for the
housing project, Chris Oehler, Neal's project manager, orally
inquired of two employees of the project architect regarding the
status of permanent electricity service at the construction
sites.2 Oehler later affied that Roger Sieber had informed him
that "all necessary arrangements had been made by [the Housing
Authority] to assure that permanent electric utility service
would be available for use by the contractor during construction
on the project." He also affied that Paul Whipple had told him
that the Housing Authority was "attempting to complete
negotiations with the serving utilities so that permanent
electric utility service could be constructed during the summer
of 1988."
Despite these representations and the fact that HUD had
requested that formal executed agreements with the local
utilities be in place before the main construction contract was
awarded, the Housing Authority did not complete its discussions
with the utilities before it awarded the contract to Neal.
With the exception of one village which was fully
equipped with permanent power when Neal required it, Neal
completed construction before permanent power lines were extended
to the new subdivisions.3 To satisfy its power requirements
during construction, Neal relied on temporary generators. Final
acceptance of the housing units was also delayed because
mechanical equipment installed in the homes could not be formally
inspected without the presence of permanent power.
In October 1990 Neal submitted a written request to the
Housing Authority for an equitable adjustment of the final
contract price.4 In its demand for additional compensation, Neal
claimed that the Housing Authority's failure to supply permanent
electrical power for use during construction resulted in delays
and additional costs. The Contracting Officer denied Neal's
claim, stating that the Housing Authority was under no
contractual duty to supply Neal with electrical power.
Neal pursued its equitable adjustment claim against the
Housing Authority in Bethel Superior Court. Among other contract
claims, Neal contended that it "suffered substantial construction
delays and extra costs as a result of [the Housing Authority's]
failure to timely bring permanent electrical power to the
construction sites." The Housing Authority denied that it was
responsible for supplying permanent power for Neal's use. The
parties cross-moved for partial summary judgment on this issue.
In a memorandum decision the superior court granted the
Housing Authority's Motion for Partial Summary Judgment. After
examining the entire contract, Judge Curda concluded: "The Court
sees no evidence, in reviewing the contract, standing alone,
which indicates that [the Housing Authority] had a duty to supply
permanent power for use by Neal during construction." The court
went on to consider the extrinsic evidence offered by Neal,
especially pre-bid representations made by the architect which
Neal argued led it to expect that permanent power would be
available for its use during construction. The court explained
that under the facts of the case, debate over the meaning of the
contract was a question for the court: "The language of the
contract, standing by itself, and in light of the extrinsic
evidence provided to this Court, is not reasonably susceptible to
both asserted meanings, but only one." The court determined that
because the contract was integrated, and because the extrinsic
evidence "directly contradicts the contract as interpreted by
[the] Court,"Oehler's testimony constituted inadmissible parol
evidence.
Neal unsuccessfully moved the court for
reconsideration. Alaska R. Civ. P. 77(k). The trial court
further ruled that based upon the court's decision granting the
Housing Authority partial summary judgment, Neal would not be
permitted to present additional evidence at trial on the
electricity issue. The court explained that "[b]ased on the
Court's knocking out that cause of action, hearing evidence on
that is not relevant."
On the eve of trial, the parties settled all remaining
claims, with Neal preserving the right to appeal from partial
summary judgment on the electricity issue. Neal now appeals.
III. DISCUSSION
A. Duty to Supply a Source of Permanent Electricity
For Construction Purposes
Neal bases its contention that the Housing Authority
was obligated to supply the construction sites with a source of
permanent electric power on three primary grounds. First, Neal
argues that the language of the contract, taken as a whole,
implies that the Housing Authority had a duty to timely supply
permanent power to the sites for construction purposes. Neal
emphasizes certain contract provisions which direct Neal to
"[a]scertain where these services will be available"5 and require
Neal to ensure that "the electrical equipment provided will
operate with the site electrical system."6 (Emphasis added.)
Second, Neal contends that the architect's
representations that permanent power "would be available" for
Neal's use during construction reinforced the contractor's
interpretation of the agreement's express terms. Because this
extrinsic evidence does not vary or contradict the terms of the
contract as interpreted by Neal, Neal contends that the parol
evidence rule is inapplicable.
Finally, Neal argues that at a minimum, it was a third-
party beneficiary of the Housing Authority's underlying contract
with HUD. Neal notes that the Housing Authority was required to
equip the new subdivisions with permanent electric power for the
benefit of future homeowners, and emphasizes that HUD had
specifically requested that the Housing Authority finalize its
agreements with the local utilities before awarding the
construction contract to Neal.
The Housing Authority rejects Neal's assertions that it
was responsible for erecting a source of permanent power in time
for Neal to use during construction. The Housing Authority
contends that with regard to electrical power, the contract was
reasonably susceptible to only one meaning. Central to the
Housing Authority's argument are two express provisions which
required Neal to "furnish all . . . power . . . necessary for
performance of the work."7
The Housing Authority also identifies contract language
which, in its view, explicitly allocated to Neal the risk that a
source of permanent power would not be immediately available. In
the "Conditions Affecting the Work"clause, for example, Neal
represented that it had "satisfied itself as to the general and
local conditions which can affect the work or its cost." The
provision further specified:
Any failure of the Contractor to take
the actions described and acknowledged in
this paragraph will not relieve the
Contractor from responsibility for estimating
properly the difficulty and cost of
successfully performing the work or for
proceeding to successfully perform the work
without additional expense to the [Housing
Authority].
In addition to requiring Neal to investigate local conditions,
the Housing Authority assumed no responsibility for
interpretations other than those made in writing and incorporated
into the contract.8 The bid documents explained the proper
procedure for obtaining a formal interpretation: questions shall
be submitted in writing before the deadline for bidding, and
written interpretations shall thereafter be circulated to each
bidder and incorporated into the contract.
The Housing Authority maintains that although Neal
acceded to these terms, the contractor did not adequately perform
its due diligence inquiry. According to the Housing Authority,
Neal failed to visit two of the five job sites or contact any of
the local utility companies prior to bidding on the contract.
Therefore, the Housing Authority argues that Neal's expectation
that permanent power would be provided in time for use during
construction was not objectively reasonable.
Finally, the Housing Authority contends that the lower
court properly applied the parol evidence rule to bar evidence of
pre-bid representations by the architect and correctly entered
judgment in favor of the Housing Authority as a matter of law.
In the Housing Authority's characterization, because the
architect's representations flatly contradict the integrated
contract, evidence of these conversations cannot be used to vary
the terms of the agreement. The Housing Authority concludes that
because Neal otherwise failed to identify any genuine issues of
material fact, we should affirm summary judgment in the Housing
Authority's favor.
The goal in interpreting any contract is to "'give
effect to the reasonable expectations of the parties.'" Stepanov
v. Homer Elec. Ass'n, 814 P.2d 731, 734 (Alaska 1991) (quoting
Mitford v. de Lasala, 666 P.2d 1000, 1005 (Alaska 1983)). A
grant of summary judgment based upon the interpretation of a
contract is subject to de novo review. Martech Constr. Co. v.
Ogden Envtl. Servs., 852 P.2d 1146, 1149 (Alaska 1993). Summary
judgment is inappropriate where the evidence before the trial
court establishes that a genuine factual dispute exists as to the
parties' intent. Id. The parties' expectations must be gleaned
not only from the contract language, but also from extrinsic
evidence, including the parties' conduct, goals sought to be
accomplished, and surrounding circumstances at the time the
contract was negotiated. Peterson v. Wirum, 625 P.2d 866, 870 &
n.7 (Alaska 1981).
1. The contract
The contract language, when read alone, does not
support Neal's position. The detailed agreement explicitly
stated in two
separate passages that electrical power required for construction
purposes was the sole responsibility of the contractor. On the
first page of the standard-form HUD contract, in regular type,
the agreement provided: "The Contractor shall furnish all . . .
light, heat, [and] power . . . necessary for performance of the
work . . . ." In the specifications provided by the Housing
Authority for the project, the contract again provided: "Water
and electricity for construction shall be the responsibility of
and shall be paid by the Contractor."
We find these clauses to be straight-forward. Nowhere
in the contract document did the Housing Authority expressly
promise that permanent power would be available for Neal's use.
Where the agreement did address the contractor's need for
electrical power, it used the broad phrases "[t]he Contractor
shall furnish"and "the responsibility of . . . the Contractor,"
thereby placing the responsibility on Neal to determine what type
of power source it would use during construction. It would be
unreasonable to argue that the contractor's duty to "furnish"
power simply requires it to pay for electricity used while hooked
up to a pre-existing permanent power source. The second clause
cited above clearly makes a distinction between the contractor's
duty to pay for temporary utilities and its fundamental duty to
procure those services for itself.9
An interpretation which allocates the duty to provide
electrical power during construction solely to Neal is consistent
with the remainder of the contract. At the initial stages of the
procurement, upon review of the bid documents, it should have
been clear to Neal that the installation of permanent electrical
power at the remote sites could occur simultaneously with
construction. There are at least two distinct passages in the
agreement that required Neal to "coordinate all his work with the
serving utilities (electrical, telephone, etc.)." Significantly,
nowhere did the contract indicate that permanent electrical power
would be established by a certain date.
In addition to the fact that the agreement was silent
with regard to the date when permanent electrical power would
ultimately be available, several provisions placed the risk upon
the contractor that permanent power would not be established
prior to or during construction. Neal agreed to investigate
local conditions which could affect the cost of the work; this
would include assessing the progress made at each site in setting
up permanent power. The contract further specified that the
Housing Authority would be responsible only for contract
interpretations made in writing and incorporated into the
contract; had Neal experienced any uncertainties after its
investigation, it could have requested a formal interpretation.
Instead, Neal now identifies certain language in the
contract which, in its view, implied that permanent electrical
power would be established at the sites and available for Neal's
use either at the outset of construction or before its
completion. In referring to temporary utilities, for example,
the contract stated: "Ascertain where these services will be
available, make temporary connections as required and remove same
upon completion of work." (Emphasis added.) Neal also
emphasizes the contractual requirement that inspections were to
utilize "the site electrical system." Neal contends that from
this language, it formulated a reasonable expectation that the
Housing Authority intended to set up permanent electrical power
in time for Neal to use during construction.
In light of the provisions which placed the risk upon
Neal that permanent power would not be available for construction
use, Neal's interpretation misses the mark. The language
requiring the contractor to "[a]scertain where these services
will be available"should actually be read as a further directive
to Neal to inquire into or "ascertain"the specific conditions at
the five sites. As for the language which required inspections
to utilize "the site electrical system," we agree with the
analysis of the trial court. In light of the two provisions
which placed responsibility for temporary power squarely on the
contractor, see supra notes 5 and 7, the inspection term must be
read narrowly: "If inspection cannot occur until permanent power
is available, then [the Housing Authority] has a duty to promptly
make power available for inspection purposes."(Emphasis added.)
Finally, Neal draws our attention to some remaining
language from the contract to support its position. Neal points
out that the contract offered distinct warnings regarding a lack
of certain services at the construction sites. For instance, the
contract specifically cautioned that "[t]he Contractor should be
aware of the lack of rooming and dining facilities in some
villages." Neal infers that if the Housing Authority was under
no duty to supply permanent power, the contract would have
offered as specific a warning about the unavailability of
electricity.
Neal's argument is not persuasive. In light of the two
provisions discussed above which explicitly stated that the
contractor was to be responsible for providing electric power for
construction purposes, as well as the terms which placed the risk
upon Neal that permanent power might not be available in time for
the contractor's use, it is clear that Neal was adequately
warned. Based on the foregoing analysis, we can come to no
other conclusion but that the language of the agreement clearly
placed the burden upon potential bidders to investigate the
availability of power at the outset and, if necessary, to make
other arrangements to meet construction requirements. We
therefore agree with the conclusion of the trial court that the
contract provides "no evidence . . . standing alone, which
indicates that [the Housing Authority] had a duty to supply
permanent power for use by Neal during construction."
2. Extrinsic evidence
With no firm indication from the contract that a
genuine issue of material fact exists as to the parties' intent,
we turn to the extrinsic evidence. Foremost is the affidavit of
Neal's project manager Chris Oehler, in which Oehler reported the
pre-bid oral representations made by the architect that "all
necessary arrangements had been made by [the Housing Authority]
to assure that permanent electric utility service would be
available for use by the contractor during construction on the
project. "The superior court concluded that this evidence was
barred by operation of the parol evidence rule.
In Western Pioneer, Inc. v. Harbor Enterprises, Inc.,
818 P.2d 654 (Alaska 1991), we reversed a superior court's
application of the parol evidence rule, and in doing so,
summarized the current status of the rule in Alaska:
The parol evidence rule is implicated
when one party seeks to introduce extrinsic
evidence which varies or contradicts an
integrated contract. Once the rule is
triggered, the parties' reasonable
expectations are determined by applying a
three-step test. The first step is to
determine whether the contract is integrated.
The second step is to determine what the
contract means. Determining the meaning of a
contract is treated as a question of law for
the court except where there is conflicting
extrinsic evidence on which resolution of the
contract's meaning depends. Whether there is
conflicting extrinsic evidence is a question
resolved by the court. Even where there is
conflicting extrinsic evidence the court
decides the question of meaning except where
the written language, when read in context
with its subject matter, is reasonably
susceptible to both asserted meanings. . . .
Extrinsic evidence may always be received in
resolving these first two inquiries. The
third step is to determine whether the prior
agreement conflicts with the integrated
writing. Whether there is conflicting
extrinsic evidence depends on whether the
prior agreement is inconsistent with the
integration. Inconsistency is defined as
"the absence of reasonable harmony in terms
of the language and respective obligations of
the parties."
Id. at 657 n.4 (citations omitted) (emphasis added).
The parties do not dispute the trial court's conclusion
that the contract was fully integrated. Under the steps
articulated in Western Pioneer it thus becomes necessary to
elaborate upon what the contract means in view of the extrinsic
evidence. Because the procedural posture of this case is such
that the question of meaning has never been presented to the
trier of fact, we must consider whether the contract, when read
in context with the extrinsic evidence, is "reasonably
susceptible to both asserted meanings." Western Pioneer, 818
P.2d at 657 n.4.
After considering all of the extrinsic evidence
presented, we remain convinced that the contract does not contain
a promise by the Housing Authority to supply Neal with a source
of electricity for use during construction. The strongest
evidence that Neal presents is the pre-bid oral statements made
by the architect to Oehler noting that permanent electrical
service "would be available"for Neal's use. Taken alone, these
statements might be construed either as a promise or a
prediction. However, in light of the written language of the
contract and other surrounding circumstances, it is clear that
the statements could not have reasonably been interpreted to have
been anything but predictions.
As noted above, bid documents provided by the Housing
Authority contained two explicit provisions vesting the
responsibility for providing all light, heat, and power necessary
for construction with the contractor. Upon learning that there
might soon be a convenient on-site source of permanent electrical
power, however, Neal made no attempt to secure a written addendum
to the contract through the formal procedures outlined by the bid
documents. Moreover, in the face of two express terms imputing
familiarity with local conditions to the contractor, Neal
apparently chose not to visit two of the construction sites or
contact any of the local utilities to discuss their scheduling
intentions until after the contract was awarded. Finally,
although the contract documents permitted Neal to complete
construction as late as May and September 1989, at the time of
the contract award Neal voluntarily chose to accelerate its
schedule and aim for completion by December 1988.
Although courts will look to extrinsic evidence to
assist in questions of contract interpretation, we cannot ascribe
undue weight to statements which, by the contract's terms, are
not controlling. In this regard, we adhere to the rule-of-thumb
articulated in Alaska Diversified Contractors, Inc. v. Lower
Kuskokwim School District, 778 P.2d 581 (Alaska 1989), cert.
denied, 493 U.S. 1022 (1990): "'after the transaction has been
shown in all its length and breadth, the words of an integrated
agreement remain the most important evidence of intention.'" Id.
at 584 (quoting Restatement (Second) of Contracts 212 cmt. b).
Despite the architect's alleged pre-bid statements, when the
testimony is viewed in context with all of the extrinsic
evidence, it cannot be said that the contract language is
"reasonably susceptible"to Neal's interpretation.
In view of this analysis, we conclude that the superior
court properly applied the parol evidence rule to bar Oehler's
testimony. To the extent that the architect's oral
representations implied that the Housing Authority was willing to
take on some "responsibility" for supplying a source of
electricity for use during construction, the statements are not
in "reasonable harmony"with the obligations of the parties as
set out in the written agreement. The architect's pre-bid
statements therefore directly contradict the meaning of the
integrated agreement and will not be permitted to vary the terms
of the contract.
3. Third-party beneficiary
Neal subtly presents one final argument to support its
contention that the Housing Authority was responsible for
providing the contractor with a source of permanent power. In
Neal's view, it was a third-party beneficiary of the underlying
contract between the Housing Authority and HUD. The record shows
that HUD desired that the Housing Authority would have final
agreements with the local utilities in place before awarding the
main construction contract bid. From this, Neal infers that the
Housing Authority possessed a duty to supply Neal with permanent
electric power for construction.
This argument also lacks merit. Although Neal may have
been at least an incidental third-party beneficiary of the
Housing Authority's contract with HUD, a third-party right in a
contract will not be implied absent evidence showing that the
parties intended that at least one purpose of the contract is to
benefit the third party. Stewart-Smith Haidinger, Inc. v. Avi-
Truck, Inc., 682 P.2d 1108, 1112 (Alaska 1984). Because Neal
presented no supporting affidavits tending to show that there is
a genuine issue for trial on this claim, Neal's third-party
beneficiary argument cannot provide a basis for reversal.
We conclude that there are no genuine issues of
material fact tending to show that the parties expected the
Housing Authority to supply the sites with a source of permanent
electricity for use during construction. Since under the
contract Neal was therefore solely responsible for meeting its
own power requirements, Neal's claim for an equitable adjustment
of the contract price was properly denied as a matter of law.
We affirm the grant of partial summary judgment in favor of the
Housing Authority.
B. Neal's Motion for Reconsideration
Neal additionally appeals from its unsuccessful motion
for reconsideration in response to the trial court's entry of
partial summary judgment. Neal urged the court to postpone its
final decision until the court had an opportunity to hear all of
the evidence at trial, especially expert testimony concerning
"standard public construction industry practices." During brief
oral argument at the pre-trial conference, Neal made two
alternative requests of the court: (1) grant a short continuance
to allow the court to process the arguments in Neal's newly
submitted 60-page brief; or (2) designate the decision as a final
judgment under Alaska Civil Rule 54(b).
Under Alaska Civil Rule 77(k), a litigant may move the
court to reconsider a ruling under certain limited circumstances:
(i) The court has overlooked,
misapplied, or failed to consider a statute,
decision or principle directly controlling;
or
(ii) The court has overlooked or
misconceived some material fact or
proposition of law; or
(iii)The court has overlooked or
misconceived a material question in the case;
or
(iv) The law applied in the ruling has
been subsequently changed by court decision
or statute.
A trial court's decision on a motion to reconsider will not be
reversed on appeal absent an abuse of discretion. State v.
Alaska Continental Dev. Corp., 630 P.2d 977, 990 (Alaska 1980);
Brown v. State, 563 P.2d 275, 279 (Alaska 1977); Miller v.
McManus, 558 P.2d 891, 892 (Alaska 1977).
Given the evidence presented by the record, we cannot
say that in denying Neal's motion to reconsider Judge Curda
clearly erred. First, upon review of Neal's motion, we fail to
detect any legal proposition that differs from those originally
raised in opposition to the Housing Authority's motion for
summary judgment. In light of this and the superior court's
original twenty-page memorandum decision which thoroughly
addressed the facts and Neal's various arguments, we are not
convinced that in entering summary judgment, the court
"overlooked"a material question, fact, or principle bearing on
the case.
Second, in referring to the two experts that Neal
planned to present at trial and requesting that the court review
the contractor's trial brief, Neal effectively moved the trial
court to reconsider its ruling based upon evidence that was not
before it at the time it rendered its decision.10 Neal provided
no explanation for the delay in presenting the evidence.11
Moreover, Neal had ample opportunity to secure the affidavits and
depositions that it deemed necessary to oppose the summary
judgment motion. The Housing Authority moved for partial summary
judgment approximately a year and a half after the initiation of
the case. Neal was given two forty-five-day continuances to
conduct additional discovery. Following oral argument, Neal
supplemented the record.
We refuse to allow a motion for reconsideration to be
used as a means to seek an extension of time for the presentation
of additional evidence on the merits of the claim. To do so
would defeat the limited purpose of Rule 77(k): to remedy
mistakes in judicial decision-making where grounds exist, while
recognizing the need for a fair and efficient administration of
justice. There being no compelling justification for re-opening
the merits of Neal's claim, we affirm the superior court's denial
of Neal's motion for reconsideration.
C. Evidentiary Ruling
Finally, Neal appeals the trial court's evidentiary
ruling which followed the denial of Neal's motion for
reconsideration and precluded Neal from presenting further
evidence on the electricity issue at trial. Neal argues that the
ruling was in error because under Alaska Civil Rule 54(b), a
grant of partial summary judgment not entered as a final judgment
may be revised at any time after additional evidence is heard at
trial. Neal therefore contends that in situations such as this
where the party desires to present additional evidence, unless a
Rule 54(b) final judgment is entered, the trial court is
obligated to continue hearing evidence on the decided issue.
We do not agree. In cases partially adjudicated on a
summary judgment motion, Alaska Civil Rule 56(d) provides that
the facts that pertained to the entry of partial summary judgment
"shall be deemed established." Although the trial court retains
the option to hear additional evidence on the matter, see Alaska
N. Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 38
(Alaska 1983), cert. denied, 464 U.S. 1041 (1984), the court is
not required to do so. Like other questions of evidentiary
relevance, this decision is reserved for the discretion of the
trial court. Id. at 42.
We cannot say that Judge Curda was clearly mistaken in
refusing to allow Neal to present additional evidence on the
electricity issue at trial. We therefore affirm.
IV. CONCLUSION
Neal has not shown that a genuine issue of material
fact exists as to the parties' expectations concerning whether
the Housing Authority was responsible for providing a source of
permanent electricity for Neal's use during construction. We
agree with the trial court that the construction contract was
reasonably susceptible to only one interpretation: that the
Housing Authority was not responsible for supplying Neal with a
source of permanent electricity and that, consequently, Neal is
not entitled to an equitable adjustment on that basis.
AFFIRMED.
_______________________________
1 Housing Authority Executive Director John Guinn affied
that permanent electrical power was present at four sites within
a distance of 200 to 800 feet. Nevertheless, only one of the
five construction sites was directly outfitted with a source of
permanent electricity which could support Neal's power
requirements.
2 The inquiries were made specifically to employees of
Kowchee, Inc., the project architect, which possessed the
authority to act as a conduit for dialogue between the Housing
Authority and the contractor.
3 Permanent electrical service arrived at the unequipped
sites on the following dates:
Mekoryuk
December 16, 1988
Napakiak December
18, 1988
Napaskiak April 1,
1989
Pitkas Point April 20,
1989
4 The standard-form HUD contract allows the contractor to
request an equitable adjustment to compensate for site conditions
that "differ materially from those ordinarily encountered and
generally recognized as inhering in work of the character
provided for in the contract."
5 The relevant portion of the "Temporary Facilities and
Controls"section provided:
1. Temporary Utilities: Water and
electricity for construction shall be the
responsibility of and shall be paid by the
Contractor. Ascertain where these services
will be available, make temporary connections
as required and remove same upon completion
of work.
2. Temporary Heat: Furnish temporary
heat by methods approved by the Architect . .
. .
(Emphasis added.)
6 In the "Description of Systems"section, the contract
stated: "The contractor shall be responsible for verifying that
the electrical equipment provided will operate with the site
electrical system . . . ."
7 The "Contractor[']s Responsibility for Work" clause
stated: "The Contractor shall furnish all necessary labor,
materials, tools, equipment, water, light, heat, power,
transportation, and supervision necessary for performance of the
work and shall properly protect it until acceptance by the
[Housing Authority]." (Emphasis added.) See also supra note 5.
8 The "Conditions Affecting the Work" clause further
provided:
The [Housing Authority] assumes no
responsibility for any conclusions or
interpretations made by the Contractor based
on the information made available by the
[Housing Authority]. Nor does the [Housing
Authority] assume responsibility for any
understanding reached or representation made
concerning conditions which can affect the
work by any of its officers or agents before
the execution of this contract, unless that
understanding or representation is expressly
stated in the contract.
(Emphasis added.)
9 In addition, the contractor's responsibility to pay for
utility connections or extensions is detailed separately in the
contract.
10 Neal apparently never provided the trial court with
affidavits describing the experts' testimony, and the experts'
depositions were not filed with the trial court until the day of
the pre-trial conference -- two days after the motion to
reconsider. In addition, although it was timely, Neal submitted
its trial brief the Monday following the court's Friday entry of
partial summary judgment.
11 Summary judgment was entered on October 1, 1993. Neal
explains that because Chris Oehler could not be deposed until mid-
September 1993, in order to save money, Oehler and Neal's experts
were deposed on the same trip. However, even if the depositions
were scheduled too late to obtain copies in time to submit to the
court, Alaska Civil Rule 56(e) allows a party to submit
supporting affidavits to oppose summary judgment. Earlier, Neal
submitted an affidavit from Oehler even though he was
incarcerated out-of-state. Neal does not explain why it would
have been infeasible to submit affidavits outlining the opinions
of the experts as well.
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