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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Construction & Engineering, Inc. v Balzer Pacific Equipment Company (01/27/2006) sp-5981
Notice: This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ALASKA CONSTRUCTION & | ) |
| ENGINEERING, INC., | ) |
| ) Supreme Court No. S- 11168/11225 | |
| Appellant/Cross-Appellee, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-01-12395 CI |
| ) | |
| BALZER PACIFIC EQUIPMENT | ) |
| COMPANY, | ) O P I N I O N |
| ) | |
| Appellee/Cross-Appellant. | ) [No. 5981 - January 27, 2006] |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Thomas S. Gingras and Erin K.
Egan, Eide, Miller & Pate, P.C., Anchorage,
for Appellant/Cross-Appellee. David W.
Pease, Burr, Pease & Kurtz, Anchorage, for
Appellee/Cross-Appellant.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Alaska Construction & Engineering, Inc. (ACE) leased
various pieces of equipment from Balzer Pacific Equipment Company
(Balzer). When ACE stopped making rental payments, Balzer sued
for breach of contract and sought prejudgment delivery of the
equipment. Balzer was allowed to retrieve its equipment after
putting up a bond. The jury returned a verdict for Balzer on its
breach of contract claims, rejected ACEs affirmative defenses,
and awarded ACE $10,000 on one of its counterclaims. Post-trial,
the superior court ruled that: (1) Balzer was the prevailing
party; (2) the attorneys fees provisions in the lease did not
apply to Balzers attorneys fees at trial; and (3) Balzer was
entitled to prejudgment interest at the statutory rate of three
and three-quarters percent, as opposed to the eighteen percent
rate listed on Balzers invoices to ACE. ACE appeals the
prevailing party decision; Balzer appeals the decisions regarding
the attorneys fees provisions and the prejudgment interest rate.
Because ACE won on relatively minor claims while Balzer
won on its main claim, we affirm the superior courts designation
of Balzer as the prevailing party. Because the lease and the
option to purchase are separate agreements, we hold that the
attorneys fees provisions in the option to purchase and the
repossession section of the lease are inapplicable to this case.
Because Balzer did not offer sufficient record evidence regarding
the invoice interest rate, we reject the argument that ACE agreed
to pay eighteen percent prejudgment interest. Thus, we affirm
the superior court in all respects.
II. FACTS AND PROCEEDINGS
ACE, an Alaska corporation, contracted with Balzer, an
Oregon corporation, to lease various pieces of rock crushing
equipment with the option to purchase. Two agreements were
involved: a December 15, 2000 agreement for conveyers and
accessories at $8,980 per month, and a January 11, 2001 agreement
for a screen plant at $7,000 per month. The agreements, which
were drafted by Balzer, are identical except as to the items
leased and their value.
By July 2001 ACE had defaulted on its rental payments.
Balzer sued for back rent in Oregon in August 2001. In November
2001 Balzer filed a complaint for breach of contract against ACE
in Alaska. Balzer claimed that ACE breached the contract by
ceasing to make monthly rental payments and failing to return the
equipment. The complaint prayed for the return of the equipment,
attorneys fees, and other relief appropriate under the
circumstances. Balzer also moved for prejudgment delivery of the
equipment pursuant to Alaska Civil Rule 88, and submitted a bond
for $228,000, representing the combined contract price of the
leased equipment. ACE answered the complaint and opposed the
motion for prejudgment delivery. ACE offered various affirmative
defenses (including that Balzer materially breached by providing
defective equipment), and counterclaimed for unfair trade
practices, breaches of contract and the duty of good faith and
fair dealing, and intentional and negligent misrepresentation.
ACE sought damages of just over $1 million.
A hearing on prejudgment delivery was held on December
11, 2001. ACE opposed the motion on the grounds that it had an
ownership interest in the equipment stemming from the rent it had
already paid. ACE also argued that Balzers bond of $228,000 was
insufficient under AS 09.40.270,1 which governs undertakings. At
the hearing, the superior court ordered Balzer to post a bond of
$489,560, about twice the value of the equipment as set out in
the lease agreements. ACE then agreed to turn over the equipment
to Balzer. In January 2002 Balzer picked up the equipment at
ACEs Anchorage storage yard and eventually transported it to
Oregon.
A jury trial was held in February 2003 before Superior
Court Judge Philip R. Volland. At trial Balzer sought $20,000 in
transportation costs for returning the equipment to Oregon,
$52,000 in repair costs, and $40,000 in back rent for ACEs
alleged running of a second shift in violation of the contracts.2
In its counterclaim, ACE alleged that it incurred losses from
defects in the equipment and loss of profits resulting from those
defects; it sought damages totaling $359,000.3 The jury found
that ACE breached the contract and violated the implied covenant
of good faith and fair dealing. Therefore, it awarded Balzer
approximately $50,500 in damages. The jury rejected all of ACEs
affirmative defenses. It also rejected three of ACEs
counterclaims: that Balzer had breached the contract, contravened
the implied covenant of good faith and fair dealing, and made
intentional misrepresentations. The jury found that Balzer had
made negligent misrepresentations and awarded ACE approximately
$10,000 in damages.
Following the verdict, Judge Volland considered whether
to award attorneys fees. The court made three rulings regarding
attorneys fees. First, Judge Volland held that Balzer was the
prevailing party for the purposes of Alaska Civil Rules 82 and
79. He also held that, although Balzer was entitled to full
attorneys fees for the period before it recovered its equipment
on January 10, 2002, none of the lease agreements attorneys fees
provisions applied to fees incurred at trial. Finally, Judge
Volland rejected Balzers argument that prejudgment interest be
calculated at eighteen percent, as provided in invoices Balzer
sent to ACE, and instead applied the statutory rate of three and
three-quarters percent.
This appeal concerns only Judge Vollands post-trial
attorneys fees decisions. ACE appeals the superior courts
designation of Balzer as the prevailing party. Balzer cross-
appeals, seeking full attorneys fees and calculation of
prejudgment interest at eighteen percent.
III. STANDARD OF REVIEW
We review a trial courts decision regarding prevailing
party status as well as the award of costs and attorneys fees for
abuse of discretion.4 An abuse of discretion exists when an
award is arbitrary, capricious, manifestly unreasonable, or
improperly motivated.5
Interpretation of a contract is a question of law to
which we apply our independent judgment.6 We also apply our
independent judgment in interpreting the Alaska Civil Rules.7 In
exercising our independent judgment we adopt the rule of law most
persuasive in light of precedent, reason, and policy.8
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion in
Ruling that Balzer Was the Prevailing Party.
ACE makes two challenges to the superior courts ruling
that Balzer was the prevailing party for the purpose of awarding
attorneys fees. First, ACE argues that both it and Balzer were
prevailing parties, and that the superior court erred by not
awarding attorneys fees to both parties under Alaska Civil Rule
82 and costs under Alaska Civil Rule 79. Second, ACE contends in
the alternative that neither party was entitled to attorneys fees
and costs.
Alaska Civil Rule 82(a) provides that the prevailing
party in a civil case shall be awarded attorneys fees calculated
under this rule. Similarly, Alaska Civil Rule 79(a) states that
the prevailing party is entitled to recover costs allowable under
Civil Rule 79(f). We have previously held that a party does not
have to prevail on all the issues in the case to be a prevailing
party for purposes of attorneys fees and costs.9 But the party
must be successful with regard to the main issues in the action,
though it need not prevail on every subsidiary issue.10
The superior court held that Balzer was the prevailing
party because Balzer prevailed on the main issue in the case,
which the court defined as recovery of money owed from [Balzers]
lease contracts with Alaska Construction and Engineering. The
superior court correctly observed that the jury had rejected all
of ACEs defenses and all but one of ACEs counterclaims, and that
the amount awarded to ACE was nominal.
ACE argues that since both of the parties prevailed on
some significant claims and were awarded damages . . . both
parties should be considered to be prevailing parties. Even if
ACE is correct that it prevailed on some significant claims, we
are not persuaded that the superior court abused its discretion
by finding that Balzer was the only prevailing party.
Determination of who the prevailing party is does not
automatically follow if the party receives an affirmative
recovery, but rather is grounded on which party prevails on the
main issues.11 We have held that a litigant who successfully
defeats a claim of great potential liability may be the
prevailing party even if the other side receives an affirmative
recovery.12 Here, it was Balzer, and not ACE, that escaped
significant liability ACE requested $359,000 in damages but
Balzer was only found liable for $10,000. But it was also Balzer
that had the larger monetary award, succeeding on significant
portions of its own claims, including its breach of contract
claims, and securing a judgment nearly identical to what it
sought. In contrast, ACE received only a partial award and
succeeded on its least significant claim. In light of the jurys
findings that ACE had breached the contract and violated the
implied covenant of good faith and fair dealing, and the jurys
rejections of all but ACEs least significant claim, we do not
find the superior court abused its discretion in concluding that
Balzer prevailed on the main issue of the case and that it was
entitled to costs and attorneys fees.13
B. The Attorneys Fee Provision in the Option To Purchase
Is Inapplicable.
Balzer argues that it is entitled to its actual
attorneys fees for all legal costs and fees incurred to obtain
repossession of the equipment because both contracts contain a
separately executed, identical attorneys fees provision that
required ACE to pay Balzers reasonable attorneys fees if ACE
defaulted on any of its contractual obligations. ACE responds
that the attorneys fees provision is inapplicable to this case
because the parties intended for the fees provision to apply only
if ACE exercised its option to purchase the leased equipment, and
ACE never exercised its option. The relevant paragraphs of the
option to purchase provide:
At any time during the term of this
lease, provided Lessee
has made all payments
when due and is not
otherwise in default in
this or any other
agreement with Lessor,
Lessee may purchase the
equipment described in
the lease contract by
paying cash to Lessor the
amount of [the value of
the equipment] less 100%
of rentals paid if
purchased within 90 days,
or less 90% of the
rentals paid if purchased
after 90 days.
Time is of the essence of this contract. If
Lessee fails to make all payments when due or
defaults on any obligation, term of notice,
Lessor shall there upon be entitled to
immediate possession of all equipment, and in
the event of the commencement of any suit or
action involving this contract or the
disbursements provided by law, Lessors
reasonable costs in recovering said equipment
and such additional sum as the court may
adjudge reasonable as attorneys fees in such
suit or action or upon any appeal there from.
Balzer maintains that because the option to purchase
allowed ACE to apply past rent payments towards the purchase of
the equipment, the attorneys fees provision was triggered not by
failure to make payments on the purchased equipment, but by
failure to make lease payments that could be credited towards a
later purchase.
When interpreting a contract, we strive to give effect
and reasonable meaning to all provisions of the instrument,14 and
we interpret contract terms so as to avoid interpretations that
cause conflicts among the provisions.15
In light of these principles, we reject Balzers
interpretation. Some factors, including the fact that the lease
and option to purchase were signed contemporaneously and the fact
that the lease and the option to purchase are paginated as a
single document, support Balzers interpretation that attorneys
fees provisions contained in the option to purchase applied in
case of any failure to make lease payments. However, other
factors, such as the placement of the lease and the option to
purchase under separate subheadings, the fact that each section
is signed separately, and the fact that Balzers interpretation
would render redundant paragraph 9(c) of the lease, which allows
for attorneys fees and costs associated with repossession of the
equipment, lead us to read the lease and the option to purchase
as separate agreements. Thus, the attorneys fee provision in the
option to purchase only applies to fees associated with securing
payment for purchased items.
C. The Lease Agreement Does Not Entitle Balzer to Full
Attorneys Fees and Costs for Its Efforts After January
10, 2002.
Following trial, Balzer moved for full attorneys fees
and costs based on the lease contracts. According to the
attorneys fees provision in the section of the contract dealing
with repossession, ACE was bound:
(9) To return the equipment at the end of the
rental. If Lessee has not, at its own
expense, loaded and returned the equipment at
the Lessors written demand to do so, the
Lessee further covenants and agrees:
. . . .
(c) That Lessee will pay Lessor for all
costs, including attorneys fees, if any, and
Sheriffs costs and fees, and all other
expenses incurred by Lessor in effectuating
repossession.
The superior court agreed that Balzer was contractually
entitled to full attorneys fees and costs it incurred in
effectuating repossession. Citing Brown v. Baker,16 however, the
court observed that repossession is complete when a party resumes
possession of its property. The court then determined that
Balzer had effectuated repossession when it obtained possession
of the equipment on January 10, 2002 and was only entitled to
full fees and costs through that date. The court specifically
rejected Balzers argument that, since it was required to post a
bond in order to obtain prejudgment delivery of the equipment,
repossession was not completed until the bond was returned after
trial. The superior court analyzed Balzers arguments by looking
to AS 09.40.270, which specifies the requirements for
undertakings:
A peace officer may not take personal
property into custody until the plaintiff
delivers to the peace officer the affidavit
and undertaking of sufficient sureties to the
effect that they are bound in double the
value of the property for the prosecution of
the action and the return of the property to
the defendant, if return be adjudged, and for
the payment to the defendant of any sum that
may be recovered against the plaintiff.
(Emphasis added.)
Referring to the emphasized portion of the statute, the
superior court stated that at the prejudgment delivery hearing
ACE agreed to release the property once Balzer posted a bond for
twice the amount of the value of the equipment, and that
therefore the bond did not substitute for the property. Rather,
the bond acted to secure payment to ACE on its counterclaims
against Balzer. The court also rejected Balzers argument that
prejudgment delivery in this case had not resolved the issue of
possession, noting that neither party disputed possession at
trial and that the jury was not asked to decide which party was
entitled to possession.
On appeal, Balzer argues that because Alaska Civil Rule
8817 is a prejudgment remedy and because the bond stood in the
place of the equipment, it did not complete repossession until it
received a judgment at trial. Balzer notes that according to
Rule 88(l) the order for seizure lapses if a judgment is not
obtained within six months, and argues that therefore it did not
repossess the equipment until it received a final judgment.
Balzer also maintains that the trial falls under the repossession
sections attorneys fee provision because Balzer had to proceed
through trial to get transport costs stemming from the
repossession.
ACE responds that Balzer effectuated repossession under
the lease agreement when it reclaimed the equipment from ACE
since physical possession of the equipment was all that was
required. ACE further argues that Balzers interpretation of
Alaska Civil Rule 88 is only correct where possession is in
dispute, but that in this case, because ACE voluntarily turned
over the equipment in exchange for a bond that secured its
counterclaims, no one contested possession of the equipment.
Thus, ACE argues that Balzer effectuated repossession of the
equipment when it took physical possession of it. ACE also
adopts the superior courts position regarding Balzers bond,
arguing that ACE voluntarily relinquished its claims to the
equipment once Balzer retook possession, and only sought the bond
to guarantee its counterclaims against Balzer.
We agree with the superior courts analysis. As noted
previously, ACE in its opposition to Balzers motion for
prejudgment delivery initially claimed a compensable property
interest in the equipment. However, after Balzer posted the
replevin bond and retook possession in January 2002, ACE waived
any ownership claims to the equipment. Although Balzer correctly
observes that a Civil Rule 88 bond stands in the place of
personal property, Balzers further assertion that repossession
cannot be completed or effectuated until a Rule 88 bond has been
returned is undermined by the facts of this case. The superior
court did not issue, nor did Balzer request, a Civil Rule 88(e)
seizure order.18 After Balzer repossessed the equipment in
January 2002, there was no question of returning it to ACE, nor
did ACE persist in asserting that its previous lease payments
created an ownership interest under the option to purchase
agreement. Balzer filed its first amended complaint in March
2002. In its answer and counterclaims, filed in April 2002, ACE
omitted any claim to the equipment, and claimed only damages for
unfair trade practices, breach of contract and of the duty of
good faith and fair dealing, negligent and intentional
misrepresentation, and fraud.
The replevin bond has two purposes. It guarantees both
the return of the property to the defendant, if return be
adjudged, and . . . the payment to the defendant of any sum that
may be recovered against.19 In this case, the bond served only
the second of its two purposes (guarantee of payment to the
defendant), since the parties agreed on ownership of the
equipment before trial and Judge Volland did not instruct the
jury to decide this issue.
Balzer is incorrect in stating that repossession
requires final judgment simply because the possessory rights are
premised on continued pursuit of the replevin action. Balzer
offers several cases for the proposition that replevin actions
are temporary in nature and that possession is final only after a
final judgment is rendered.20 Balzer relies primarly on Eastman
Kodak Co. v. Thomas Gordon and Associates, Inc. for this
proposition.21 In that case, Eastman Kodak secured return of its
equipment through a prejudgment bond, but both parties then let
their claims and counterclaims languish for eight years, and the
suit was dismissed for lack of prosecution. The court held that
Thomas Gordon was the prevailing party because replevin
plaintiffs are under an obligation to pursue their claims.22
Balzer maintains that Eastman Kodak supports its position that
repossession requires a final judgment because its possessory
rights were similarly temporary. But Eastman Kodak is
distinguishable from the present case. While in both cases there
was no final judgment on the propriety of the prejudgment
seizure, in Eastman Kodak this was because the parties allowed
the case to languish. By contrast, in the present case, Balzer
and ACE agreed during the replevin hearing that Balzer would take
possession of the equipment, following which the parties actively
litigated the issues remaining between them. Nor did Balzer
offer any evidence that the delayed payments and the costs of
securing the bond undermined Balzers use of the equipment.
Balzer was able to make repairs, sell some of the equipment, and
prepare the rest for re-rental. Similarly, there is no evidence
that the costs of securing the bond and delayed payments
undermined Balzers ability to use the equipment. And as the
prevailing party, Balzer can pass costs associated with the bond
to ACE, while any delays in payment due to the trial are offset
by the award of prejudgment interest. Thus, Balzer did not
suffer any detriment that prevented it from exercising control
over the property sufficient to have effected repossession.
Balzer also argues that transportation costs are a part
of the repossession and that [it] did not effectuate repossession
until it recovered its transportation costs at the trial, which
required that it defeat ACEs counterclaims. Put differently,
Balzer asserts that because it did not receive the transport
costs ACE was obligated to pay until Balzer received a final
judgment at trial, the attorneys fees associated with securing
those transport costs are covered by the repossession sections
attorneys fees provision. We reject this argument because it
fails to distinguish between Balzers attorneys fees associated
with securing its transport costs and those fees associated with
defending against ACEs counterclaims or those related to securing
its repair costs. In this combined action, sizeable portions of
Balzers trial attorneys fees were clearly associated with non-
transport costs. Balzer successfully defended against ACEs
numerous counterclaims, and the repair damages amounted to
$30,000 of Balzers $50,500 judgment. In light of this
commingling of issues and effort, we reject Balzers argument that
it can collect full attorneys fees for trial services under the
repossession section fee provision simply because it needed to
proceed through trial to secure transport costs. To adopt the
broad interpretation suggested by Balzer would allow it attorneys
fees for claims and defenses not covered by the repossession
sections attorneys fees provision. Consequently, we reject the
argument that Balzer is entitled to full attorneys fees because
it had to proceed through trial to secure its transport costs.23
D. The Superior Court Properly Calculated Prejudgment
Interest at the Statutory Rate.
Balzer also cross-appeals the superior courts
application of AS 09.30.070s
three and three-quarters percent prejudgment interest rate. The
lease contract specifies that ACE must either make repairs to the
leased equipment or pay Balzer for any repairs according to the
prevailing price for such work. The relevant provision states:
Lessee further covenants and agrees as
follows:
. . . .
(10) To make all necessary repairs if the
equipment becomes damaged in operation or in
transit at Lessees own expense and cost, and
to hold Lessor harmless for any loss, costs
or expenses on account of or arising from
repairs or maintenance or claims therefore,
or failing to do so, Lessee authorized Lessor
to make such repairs for maintenance and
agrees to pay the same at the prevailing
price for such work.
A statement that eighteen percent interest is charged
on outstanding balances is printed on the repair invoice Balzer
sent ACE soon after Balzer repossessed the equipment. Balzer
asserts that the lease incorporates these invoices. The lease
provides:
Lessee agrees to pay on invoice apportioned
charges for tire wear, manganese wear, wear
plate or liner wear, conveyor belting, screen
cloths, and any apportioned wear costs,
lessor will be the sole judge of amount of
wear charges.
Thus, Balzer argues that ACE agreed to accept invoices
bearing the prevailing price for repairs, and that the interest
rate is part of this prevailing price. As Balzer sees it, ACE
accepted the eighteen percent interest rate (or should be deemed
to have done so) in the course of its contractually authorized
dealings with Balzer.
Alaska Statute 45.12.207(a) governs interpretations of
leases. That statute provides:
If a lease contract involves repeated
occasions for performance by either party
with knowledge of the nature of the
performance and opportunity for objection to
it by the other, any course of performance
accepted or acquiesced in without objection
is relevant to determine the meaning of the
lease agreement.
However, AS 45.12.207(a) does not apply to this case, because
Balzer did not introduce record evidence that ACE had knowledge
of the eighteen percent provision or a reasonable opportunity to
reject it before both parties ceased all performance of the
contract.24
Balzer cites only invoices for repairs which it sent to
ACE after Balzer took possession of the equipment, by which time
ACE had long ceased payments. Additionally, insofar as ACE had
an opportunity to object to the eighteen percent provision after
Balzer brought suit, we agree with ACE that in litigating Balzers
claim for repairs, ACE objected to the repair invoices as a
whole. Additionally, in its order on attorneys fees, the
superior court found that the parties contract contained no
provisions for enhanced interest. After re-examining this matter
on Balzers motion, the superior court again reached the same
conclusion in its order on correction of the judgment. Our own
search of the record reveals no earlier invoices. Further, at
oral argument Balzers counsel was unable to point to any invoice
that included the eighteen percent rate before Balzer repossessed
the equipment. We are unable to conclude on the facts presented
that ACE acquiesced to the eighteen percent provision.
Therefore, we hold that the statutory three and three-quarters
percent interest rate for prejudgment interest is appropriate in
this case.
V. CONCLUSION
Because Balzer succeeded on the primary issues at
trial, the superior court did not abuse its discretion in deeming
Balzer to be the prevailing party and awarding it attorneys fees
and costs under Alaska Civil Rules 82 and 79.
Because the lease and the option are separate
agreements, we reject Balzers argument that the attorneys fees
provision of the option to purchase is applicable to this case.
Further, because the parties did not dispute ownership
after Balzer repossessed the equipment, Balzer cannot collect its
trial costs under the repossession section of the lease. While
Balzer did have to undergo trial after repossession to secure
repossession-related transport costs, it cannot recover attorneys
fees for that effort because its trial costs include fees for
claims and defenses not incurred while securing the transport
costs. Awarding it full fees would overcompensate Balzer.
Because ACE did not agree to the eighteen percent
interest rate listed on Balzers repair invoices, the superior
court correctly set prejudgment interest at the statutory rate.
In sum, we AFFIRM the decision of the superior court in
all respects.
_______________________________
1 Alaska Statute 09.40.270 states in relevant part:
A peace officer may not take personal
property into custody until the plaintiff
delivers to the peace officer the affidavit
and undertaking of sufficient sureties to the
effect that they are bound in double the
value of the property for the prosecution of
the action and the return of the property to
the defendant, if return be adjudged, and for
the payment to the defendant of any sum that
may be recovered against the plaintiff.
2 The lease agreements required ACE to pay Balzer an
additional $7,990 per month if it ran the leased equipment more
than eighty hours per week. The second shift was the alleged
additional use, and Balzer argued that ACE had run a second shift
for five months.
3 ACEs original complaint requested over $1 million in
damages. However, ACE dropped its treble damages claim over the
course of litigation and claimed $359,000 in damages at closing
arguments.
4 Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002).
5 Id. at 5.
6 Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004).
7 Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996).
8 Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska
2004).
9 Hickel v. Southeast Conference, 868 P.2d 919, 925 n.7
(Alaska 1994) (internal citation omitted).
10 Id.
11 Contl Ins. Co. v. U.S. Fid. & Guar. Co., 552 P.2d 1122,
1125 (Alaska 1976).
12 Buoy v. Era Helicopters, Inc., 771 P.2d 439, 448
(Alaska 1989).
13 ACE also cites Andrus v. Lena, 975 P.2d 54 (Alaska
1999), for the proposition that a party may prevail even though
it did not secure all of the relief sought, and Blumenshine v.
Baptiste, 869 P.2d 470 (Alaska 1994), for the idea that a party
should not be penalized for a small recovery. In Andrus we held
that the plaintiff was the prevailing party because it won on its
key claims even though it lost on some claims; the size of the
monetary award was less important than the fact that plaintiff
succeeded on the claims central to its suit. Andrus, 975 P.2d at
58. Andrus does not help ACE because ACE lost on the breach of
contract and intentional misrepresentation claims that would have
shielded it from liability and allowed it to collect significant
damages. Neither does Blumenshine support ACEs argument. In
that case we awarded prevailing party status to the plaintiff in
an automobile accident case, notwithstanding his recovery of past
medical expenses, and only about $16,000 for past and future
physical impairment and pain and suffering although he claimed
$700,000. Blumenshine, 869 P.2d at 474. We held that the total
award, while small in relation to what was claimed, still
constituted a significant damage award on the main issues. Id.
at 474. This characterization supports the award of prevailing
party status to Balzer even though it did not win on its second-
shift claims, but is inapplicable to ACE given its failure to win
on its affirmative defenses or its primary counterclaims.
14 Modern Constr., Inc. v. Barce, Inc., 556 P.2d 528, 530
(Alaska 1976) (quoting 4 Samuel Williston & Walter Jaeger,
Williston on Contracts 619, at 731 (3d ed. 1961)).
15 Wessells v. State, Dept of Highways, 562 P.2d 1042,
1049 n.23 (Alaska 1977) (quoting McBain v. Pratt, 514 P.2d 823,
828 (Alaska 1973)).
16 688 P.2d 943, 950 (Alaska 1984).
17 Alaska Civil Rule 88 states in relevant part:
(a) Prejudgment Delivery of Personal Property
to Plaintiff; Availability. When the
plaintiff has commenced a civil action to
recover possession of personal property, the
plaintiff may make application to the court
to have the property delivered to the
plaintiff. The court may order the
prejudgment seizure of the property in
accordance with the provisions of this rule.
. . . .
(l) Duration and Vacation of Prejudgment
Seizure Orders Issued Pursuant to Hearing. A
prejudgment seizure order issued pursuant to
a hearing provided for in section (c) of this
rule shall unless sooner released or
discharged, cease to be of any force or
effect and the property seized shall be
released from the operation of the order at
the expiration of six (6) months from the
date of the issuance of the order, unless a
notice of readiness for trial is filed or a
judgment is entered against the defendant in
the action in which the order was issued, in
which case the order shall continue in effect
until released or vacated after judgment as
provided in these rules.
18 Alaska Civil Rule 88(e) provides:
If at the hearing the court finds that the
plaintiff has met the burden of proof as set
forth in paragraph (d) of this rule, the
court shall issue an order prescribing the
written undertaking, with sufficient
sureties, to be provided by the plaintiff and
directing a peace officer to seize and take
into custody the property described in the
affidavit upon the furnishing of the
undertaking by the plaintiff.
19 AS 09.40.270.
20 E.g., Burroughs v. U.S. Fid. & Guar., 397 P.2d 10 (N.M.
1964) overruled by Quintana v. Knowles, 827 P.2d 97 (N.M. 1992)
(describing trial court proceedings where plaintiff who recovered
possession of tractor and trailer after posting replevin bond,
then litigated ownership at trial was thus adjudged to be owner
of tractor and trailer and entitled to possession); America Rents
v. Crawley, 603 N.E.2d 1079 (Ohio 1991) (after default judgment
in creditors favor, creditor sought to repossess consumer goods
from debtor who defaulted on promissory note, but trial court
merely confirmed creditors ownership and awarded money damages to
creditor since replevin is prejudgment rather than postjudgment
remedy).
21 789 So. 2d 360, 361-62 (Fla. Dist. App. 2001).
22 Id. at 364.
23 As Balzer is entitled to fees associated with securing
its transport costs, it arguably could have requested
apportionment of its attorneys fees, gaining full fees for
transport-cost related efforts and normal Civil Rule 82 fees for
its defense against ACEs counterclaims and its securing of repair
costs. However, since Balzer did not request apportionment in
the superior court, we need not reach this argument.
24 Compare A & G Constr. Co., Inc. v. Reid Bros. Logging
Co., Inc., 547 P.2d 1207 (Alaska 1976). In that case, a
materials supplier and a highway construction contractor entered
a contract for the sale of highway construction materials. The
supplier sent a letter to the contractor notifying the contractor
that it would increase the price of the materials. Because the
contractor continued to receive and accept the materials
thereafter without objecting in writing to the price increase (as
required for sales contracts of $500 or more, under AS 45.02.201,
formerly numbered 45.05.020), the contractor was obligated to pay
the increased rate for materials received after notice of the
increased price. Id. at 1215-17. According to AS 45.02.201(c),
[a] contract which does not satisfy [the writing requirement] but
which is valid in other respects is enforceable . . . (3) with
respect to goods . . . which have been received and accepted.
(Emphasis added.)
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