| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. Benediktsson (02/16/2007) sp-6101
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
| EINAR LARSON, | ) |
| ) Supreme Court No. S- 11674 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-03-11262 CI | |
| v. | ) District Court No. 3AN-02-7369 CI |
| ) | |
| CHRIS BENEDIKTSSON, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6101 - February 16, 2007 |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Kevin G. Brady, Anchorage, for
Appellant. Isaac Derek Zorea, Anchorage, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
After agreeing to construct two houses for Chris
Benediktsson, Einar Larson filed a district court action against
Benediktsson for unpaid wages. The controversy in district court
centered on Larsons employment status. Alaska law bars
unregistered contractors from claiming pay for performing
contract work. Larson was not a licensed contractor, but alleged
that he worked for Benediktsson as an employee, not as a
contractor. After denying summary judgment for Benediktsson on
the ground that the facts on this point were disputed, the
district court held a trial, found that Larson had worked as an
employee, and entered judgment against Benediktsson. On appeal,
the superior court reversed the order denying summary judgment
without considering the evidence at trial. The main question
before us here is whether the order denying summary judgment
could be reviewed on appeal after the district court held a trial
on the merits. In keeping with the approach followed by most
other courts, we hold that an order denying summary judgment on
factual grounds becomes unreviewable after trial. Since the
district court based its order on the existence of disputed
facts, we reverse the superior courts decision on appeal and
reinstate the district courts judgment.
II. FACTS AND PROCEEDINGS
A. Facts
The relevant facts can be set out briefly.1 In the
fall of 2000 Chris Benediktsson, acting on a recommendation by
the owner of Tweed Excavating & Construction (Tweed), telephoned
Einar Larson and asked him to estimate the cost for framing two
houses on lots Benediktsson owned in Chugiak. Benediktsson
advised Larson that Tweed had quoted a price of $40,000 to
oversee the construction. Larson estimated that it would take
him about sixty eight-hour days to frame each house and would
cost $12,000 per house about $25 per hour. Larson also said
that he did not have a residential contractors license and did
not want to obtain one. Benediktsson responded that he was a
general contractor himself and preferred to pay Larson an hourly
rate. He told Larson to get started, instructing him to keep
track of all extra work so that Benediktsson could make it right.
Larson picked up the house plans from Tweed, began the
project, and continued on the job until October 2001 about a
year after he started. In performing his work Larson spent
significant amounts of time on various tasks besides framing:
correcting deficiencies in the house plans; preparing the sites
for construction; performing material take-offs; obtaining quotes
from various subcontractors and scheduling their work; expediting
materials to and from the sites; and generally overseeing the
construction of both homes. Although Larson did some of the
extra work on his own initiative because it was necessary to
enable him to begin his framing, he performed most of it at
Benediktssons specific request.
Throughout the course of the project Benediktsson paid
Larson substantially less than his billings and consistently
lagged behind in his payments. In early October 2001
Benediktsson visited Larson on the job and demanded that Larson
complete both houses within three days. Larson replied that this
would be impossible; he then quit working. Benediktsson
eventually finished the construction without Larson and sold both
houses. In November 2001 Larson sent Benediktsson a final bill
for his unpaid work. Benediktsson refused to pay, since Larson
had quit working. On December 10 Larson responded to the refusal
by recording mechanics liens on Benediktssons lots totaling
$14,760.
B. Proceedings
1. District court proceedings
In May 2002 Benediktsson filed a district court action
to cancel the liens on his property, asserting that Larson had
failed to take action to enforce the liens within six months of
their filing, as required by Alaska law.2 Larson promptly
answered with a letter advising the court that he was pursuing a
claim for wages with the Alaska Department of Labor and asking
that his liens be maintained until the claim was resolved. The
court accepted Larsons letter as a nonconforming answer to
Benediktssons complaint and scheduled the case for further
proceedings.
Larson subsequently retained an attorney, who moved to
amend the original answer by adding counterclaims for Larsons
unpaid wages. Benediktsson opposed the motion, arguing that it
was untimely and alleging that the proposed counterclaim lacked
merit because Larson apparently had not been a registered
contractor as required under AS 08.18.151 and, [i]f this is true,
Mr. Larson has no standing to pursue any legal actions to collect
unpaid wages. The district court granted Larsons motion to amend
and allowed him to pursue the counterclaims.3
Benediktsson then moved for summary judgment, claiming
that Larson could not pursue his counterclaims, because he had
worked as a specialty contractor without being properly
registered and was therefore barred from suing under
AS 08.18.151. Benediktsson supported his motion with evidence
establishing that Larson was not a registered contractor when he
worked on the houses.
Larson opposed the summary judgment motion, claiming
that he had agreed to work as Benediktssons employee not as a
contractor after receiving assurances that Benediktsson was a
licensed general contractor. Larson supported this claim with a
personal affidavit accompanied by his state wages claim,
asserting that this evidence raised factual issues concerning his
employment status, thus precluding entry of summary judgment.
After hearing oral arguments on the issue, District Court Judge
James Wanamaker denied Benediktssons motion for summary judgment
and set the case for trial, advising the parties that [t]he
central remaining issue to be tried is whether or not Larson was
acting as a specialty contractor.
After a bench trial centering on this issue, Judge
Wanamaker issued written findings of fact and conclusions of law
determining that Larson had performed the work as an employee
rather than as a contractor and was entitled to unpaid wages
totaling $16,610.09.
2. Superior court appeal
Benediktsson appealed to the superior court, limiting
his appeal to two narrow points of error: first, that the trial
court erred in allowing Larson to amend his complaint to include
counterclaims for unpaid wages; second, that the court erred in
denying Benediktssons motion for summary judgment. As to both
points Benediktsson urged the superior court to confine its
review to the pleadings filed before trial and to conclude as a
matter of law that Larson was barred from maintaining his
counterclaims because undisputed evidence established that he was
not properly registered as a contractor when he performed the
disputed work.
Responding to Benediktssons initial point, Larson
argued that the district court had not abused its discretion in
allowing him to amend his answer. As to the second point
Benediktssons challenge to the summary judgment ruling Larson
insisted that the trial courts finding that he had worked as an
employee could only be reversed if the superior court reviewed
the entire record, including the trial, and was convinced that
the district courts findings after trial were clearly erroneous.
In Larsons view, ample evidence supported the findings.
The superior court accepted Benediktssons invitation to
limit its review to the summary judgment record. Noting that the
case presented a question of legal interpretation, not factual
interpretation, the court determined that it should review de
novo the district courts denial of summary judgment. The
superior court proceeded to rule that [a] contractor is defined
by the nature of the work performed; it then found that
undisputed evidence showed that Larson performed the work of a
contractor without complying with the registration requirements
of AS 08.18.611. On this basis, the court concluded that Larsons
counterclaims were barred as a matter of law and should have been
dismissed on summary judgment. Applying the same rationale, the
court further ruled that the district court abused its discretion
in allowing Larson to include the counterclaims in his amended
answer.
We then granted discretionary review of the superior
courts ruling.
III. DISCUSSION
In seeking review of the superior courts decision on
appeal, Larson challenges the superior courts reversal of the
district courts order denying summary judgment. He asserts that
the superior court erred by reviewing a nonreviewable
interlocutory order. Larson also challenges the superior courts
decision to reverse the order allowing him to amend his answer,
insisting that the district court did not abuse its discretion in
allowing the amendment. Since the summary judgment issue becomes
moot if Larson was improperly allowed to amend his answer, we
consider the amendment issue first.
A. Order Granting Larsons Motion To Amend His Answer
Larson contends that the district court properly
allowed him to amend his answer by including counterclaims
against Benediktsson for unpaid wages. He points out that
Alaskas Rules of Civil Procedure require amendments to be freely
given when justice so requires4 and that our cases recognize that
trial courts have broad discretion to allow amendments.5 In
response, Benediktsson renews the argument accepted by the
superior court that Larson was barred as a matter of law from
asserting counterclaims in his answer because he was an
unregistered contractor. In addition, to the extent that Larsons
counterclaims requested relief under the equitable doctrine of
quantum meruit, Benediktsson contends that the district court
lacked authority to allow the amendment because the district
court is not a court of equity and has no jurisdiction to rule on
equitable claims.6
As Larson correctly recognizes, a party who seeks to
amend a pleading after the allotted time period for amending as a
matter of right must seek leave of the court; but leave to amend
must be freely given.7 The trial court has broad discretion to
determine whether to allow a party to amend a pleading.8 We will
reverse an order allowing amendment only when our review of the
entire record leaves us with a firm and definite conviction that
the trial court erred in its ruling.9
Here, after Larson sought leave to include his
counterclaims in an amended answer, Benediktsson opposed the
amendment in part because Larsons motion was untimely. But
Larsons attorney had prepared and submitted the motion soon after
being retained, and the motion was filed shortly after the sixty-
day deadline for amending as a matter of right had expired.
These circumstances do not cry out for denial.
Benediktsson also opposed the motion on the ground that
Larsons counterclaims were merely an attempt to skirt the
requirements of AS 08.18.151. In advancing this theory,
Benediktsson asserted a conclusory claim that Larson had
misrepresented himself as a registered contractor and that,
accordingly, it appeared that he had no standing to sue for
unpaid wages, pursuant to AS 08.18.151. Benediktsson supported
this allegation with a copy of a letter from his own counsel to
Larson, advancing similar claims, along with an affidavit by
Benediktssons counsel attesting that he had indeed sent the
letter.
These conclusory allegations did not in themselves
amount to a prima facie showing that Larsons claims were barred
as a matter of law. Moreover, even assuming that some evidence
to that effect might have been gleaned from the nature of the
work described in the counterclaims themselves, this evidence
would hardly have ruled out all possibility of a viable cause of
action. To the contrary, our cases demonstrate that the validity
of an ostensibly unregistered contractors claim often turns on
specific facts of the case.
Alaska Statutes 08.18.151 requires registration to be
alleged and proved whenever a person acting in the capacity of a
contractor sues for money earned in performing work for which
registration is required:
A person acting in the capacity of a
contractor . . . may not bring an action in a
court of this state for the collection of
compensation for the performance of work or
for breach of a contract for which
registration is required under this chapter
without alleging and proving that the
contractor . . . was a registered contractor
. . . as applicable, at the time of
contracting for the performance of the
work.[10]
In determining whether specific claimants and claims
fall within the scope of this requirement, we have generally
looked to the definition of contractor set out in AS 08.18.171.11
But we have refused to interpret these provisions broadly.
Instead, recognizing that rigid enforcement could yield harsh
consequences by barring meritorious claims,12 we have identified
flexible standards for determining whether AS 08.18.151 bars
particular claims.
For example, we have ruled that section .151 does not
bar suit by a contractor who is unregistered but proves
substantial compliance with the registration requirements.13 We
have emphasized the importance of determining whether the party
an unregistered contractor seeks to sue is an intended
beneficiary of the registration requirements.14 We have inquired
whether the claimant made misrepresentations about being a
registered contractor and whether these misrepresentations
fostered detrimental reliance.15 More specifically, in a case
involving a plaintiff who claimed to have worked as an employee,
we have applied a nature of the work test similar to the test
advocated by Larson below to determine whether the claimant
qualified as a contractor or was merely an employee.16
As these cases illustrate, determining whether a
particular plaintiff qualifies as a person acting in the capacity
of a contractor often turns on the resolution of disputed, case-
specific facts. Here, when it ruled on Larsons motion to amend
his complaint, the district court had no definitive factual basis
for concluding that Larson could only assert his counterclaims as
a person acting in the capacity of a contractor and was therefore
barred from suing unless he alleged and proved that he was a
registered contractor. Accordingly, the court did not abuse its
discretion in refusing to deny Larsons motion to amend on this
ground.
Benediktsson separately argues that the district court
abused its discretion by allowing Larson to file a counterclaim
on the equitable theory of quantum meruit. Benediktsson reasons
that this claim was legally barred because the district court
lacks jurisdiction to decide claims in equity. But this argument
fails on its premise that the district court can never decide an
equitable issue. In an analogous setting we have expressly held
that when consideration of an equitable claim is necessary and
incidental to the resolution of a district court action founded
in contract, resolving the claim does not convert the case into
an equitable action.17 Benediktssons jurisdictional argument
fails for a separate reason as well: the district court
ultimately based its decision on Larsons claim for breach of
contract, not his quantum meruit claim, so any error in accepting
the equitable claim would be harmless at most.
In sum, we conclude that Benediktsson has failed to
establish that the district court abused its discretion in
deciding to allow Larson to amend his answer.
B. Post-Trial Reviewability of Orders Denying Summary
Judgment
As previously mentioned, in deciding Benediktssons
appeal the superior court reviewed and reversed the district
courts order denying Benediktssons motion for summary judgment.
In doing so, the superior court confined its decision to the
summary judgment record even though the district court had held a
full trial on the merits. Larson, relying on analogous cases
decided in other jurisdictions, contends that the superior court
erred in this ruling because an order denying summary judgment is
interlocutory by nature and becomes unreviewable upon entry of a
final judgment after trial. Benediktsson, emphasizing prior
cases in which this court has reviewed summary judgment rulings,18
responds that the superior court had authority to review the
district courts summary judgment ruling.
1. Discussion of this issue in Ondrusek v. Murphy
Our consideration of this point is foreshadowed by our
recent decision in Ondrusek v. Murphy,19 which was published after
the parties here submitted their briefing. In that case,
Ondrusek filed an appeal after a jury trial, challenging an order
denying summary judgment. The appellee raised no objection to
review of the point, opting to oppose Ondruseks claims on their
merits.20 Given these circumstances, we elected to decide the
appeal as presented. We nevertheless questioned whether orders
denying summary judgment should be reviewable after trial.21
In addressing this question, we pointed out that this
court had previously allowed post-trial review of orders denying
summary judgment when they addressed legal issues whose
resolution affected the trial.22 In Ondrusek, by contrast, the
motion for summary judgment had apparently been denied because of
an unresolved factual dispute. We noted that in such cases an
argument that the summary judgment order became unreviewable
after trial would be favorably received in the federal courts,
and in many state jurisdictions.23 After listing numerous federal
and state cases addressing the issue which overwhelmingly
militated against reviewing such orders we briefly considered
our own relevant case law, observing that the issue remained open
in Alaska. We then stated that we would seriously consider
adopting the majority approach when the point was properly
raised.24 The issue we reserved in Ondrusek is now squarely
before the court.
2. Case law in other jurisdictions
Nearly every federal court of appeals has barred at
least some post-trial appeals seeking to challenge orders denying
summary judgment.25 The general rule has two expressions: one
broad, one narrow. The broader form of the rule outlaws post-
trial review of an order denying summary judgment regardless of
the reason for denial. The narrower approach prohibits only post-
trial review of orders denying summary judgment on the ground
that material factual issues exist.
a. The broad prohibition
Courts adopting the broader prohibition tend to focus
on the main purpose of summary judgment motions saving
litigation time reasoning that appellate review of an order
denying summary judgment serves no purpose after a case is tried
and a trial record has been developed.26 In Glaros v. H.H.
Robertson Co., the Federal Circuit explained, Denial of summary
judgment is strictly a pretrial order that decides only one thing
that the case should go to trial, i.e., that the claim remains
pending for trial.27 In Johnson International Co. v. Jackson
National Life Insurance Co., the Eighth Circuit Court of Appeals
echoed this statement, adding that [t]he district courts judgment
on the verdict after a full trial on the merits thus supersedes
the earlier summary judgment proceedings.28
Courts that absolutely ban such appeals have also cited
the difficulty of deciding whether the trial court denied summary
judgment on legal or factual grounds, especially because trial
courts often deny summary judgment without comment.29 Moreover,
in Black v. J.I. Case Co., the Fifth Circuit Court of Appeals
questioned whether creating a workable legal/factual dichotomy is
realistically possible:
[S]uch a dual approach would require us to
craft a new jurisprudence based on a series
of dubious distinctions between law and fact.
And, such an effort added to the tasks of
already overburdened courts of appeal would
benefit only those summary judgment movants
who failed to properly move for judgment as a
matter of law at the trial on the merits. If
such motions are properly made, the denied
motion for summary judgment need not be
reviewed, because the legal issues determined
by the district court are freely reviewable,
and the case may be reversed . . . on that
basis.[30]
Other courts adopting a broad approach have cited
concerns for fairness to the prevailing party at trial. In a
frequently quoted passage, the Ninth Circuit Court of Appeals
explained its refusal to review any denial of summary judgment as
follows:
To be sure, the party moving for summary
judgment suffers an injustice if his motion
is improperly denied. This is true even if
the jury decides in his favor. The injustice
arguably is greater when the verdict goes
against him. However, we believe it would be
even more unjust to deprive a party of a jury
verdict after the evidence was fully
presented, on the basis of an appellate
courts review of whether the pleadings and
affidavits at the time of the summary
judgment motion demonstrated the need for a
trial. After considerable research, we have
found no case in which a jury verdict was
overturned because summary judgment had been
improperly denied. We hold, therefore, that
the denial of a motion for summary judgment
is not reviewable on an appeal from a final
judgment entered after a full trial on the
merits.[31]
Some courts have apparently converted to the broader
view after initially adhering to the narrower form of the rule.
In Holley v. Northrop Worldwide Aircraft Services, Inc., the
Eleventh Circuit Court of Appeals ruled that review of summary
judgment denials would be barred after trial only if the
appellant acknowledged by the time of trial that sufficient
evidence existed to present the case to the jury or that the
evidence originally available on summary judgment had changed in
favor of the party opposing summary judgment.32 In these
situations, Holley reasoned, barring review is necessary to
prevent parties from trying to escape the impact of facts that
come to light after the denial of summary judgment: Summary
judgment was not intended to be a bomb planted within the
litigation at its early stages and exploded on appeal; instead,
it was intended as a device to diminish the effort, time, and
costs associated with unnecessary trials.33 To prevent such
abusive tactics, the court declared that a party may not rely on
the undeveloped state of the facts at the time [the party] moves
for summary judgment to undermine a fully-developed set of trial
facts which militate against [the partys] case.34 But while
Holley seemingly intended to adopt only the narrow form of the
rule, the Eleventh Circuit in later cases declined to confine
Holley to its facts, stating without qualification that the
denial of a motion for summary judgment is unreviewable after a
trial on the merits.35
b. The narrow prohibition
A separate group of federal courts has narrowed the
prohibition by allowing post-trial appeals of orders denying
motions for summary judgment when the orders have been based on
legal grounds. The Seventh Circuit Court of Appeals, for
example, initially appeared to have adopted the broad approach
barring post-trial review.36 But the following year, it reviewed
an order denying summary judgment on legal grounds, recognizing
that although post-trial review of orders denying motions for
summary judgment is usually barred, the case at issue presented a
potentially dispositive legal question, so the subsequent trial
did not make the issue moot.37
The Tenth Circuit Court of Appeals similarly seemed to
adopt the broad rule at first but then narrowed it in a later
case. In Ruyle v. Continental Oil Co.,38 the court reversed the
trial courts denial of a motion for summary judgment that
asserted a theory of collateral estoppel. In doing so, the court
of appeals distinguished its earlier ruling adopting the broad
form of the rule in Whalen v. Unit Rig, Inc.39 by recognizing the
critical distinction between summary judgment motions raising the
sufficiency of the evidence to create a fact question for the
jury and those raising a question of law that the court must
decide.40
The Second Circuit Court of Appeals falls into the same
category. In Pahuta v. Massey-Ferguson, Inc., the court adopted
the broader rule, simply declaring that it would generally
decline to review orders denying summary judgment after a case
had been tried.41 While it has never disavowed Pahutas broad
language, the Second Circuit, in Rothstein v. Carriere, reversed
an order denying summary judgment on legal grounds, even though
the case had been tried to a jury after the motion was denied.42
The Third Circuit Court of Appeals also has reversed a
jury verdict based on review of an order denying summary judgment
on legal grounds. In Pennbarr Corp. v. Insurance Co. of North
America, the district court denied summary judgment on a contract
claim.43 In reversing the order on review after trial, the court
of appeals, characterizing disputes about the meaning of
contracts as presenting questions of law, ruled that the order
was reviewable because the district court had denied summary
judgment on a legal basis.44
C. Alaska Case Law
In Ondrusek, we recognized that this court has reversed
a verdict on the basis of error in denying summary judgment on at
least one occasion a case in which the order denying summary
judgment was based on the resolution of a legal question that
affected the trial.45 In Western Pioneer, Inc. v. Harbor
Enterprises, Inc., both parties disputing the terms of a lease
filed motions for summary judgment; the superior court denied
both motions, ruling that a disputed issue existed because the
lease agreement was reasonably susceptible to different meanings.46
At trial, the parties litigated the meaning of the agreement, and
the jury found in favor of Harbor Enterprises.47 Western Pioneer
then appealed, arguing that the superior court erred in denying
its motion for summary judgment.48 We treated the meaning of the
contract as a question of law and ruled on the issue de novo.
After reviewing the record and determining that the contract had
only one reasonable meaning, we concluded that the trial court
had committed a legal error in deciding that an unresolved issue
precluded summary judgment.49 Because this legal error affected
the conduct of the trial, we reversed the jury verdict for Harbor
Enterprises.50
Shortly after Western Pioneer, we reviewed a similar
order denying summary judgment in Johnson v. Alaska State
Department of Fish and Game.51 In Johnson, the appellants moved
for summary judgment on their discrimination claim, asking the
trial court to give preclusive effect to the Alaska Human Rights
Commissions finding of discrimination.52 The superior court
denied the motion without comment.53 On appeal, we ruled that
orders denying summary judgment could be reviewed on appeal after
trial, but only if the facts applicable to the summary judgment
ruling were not in dispute.54 Because the underlying facts were
undisputed and the superior court had denied summary judgment on
a legal basis, we reviewed the order, determined that the court
had erred as a matter of law in failing to enforce the
Commissions finding, and remanded for a modified judgment giving
the Commissions finding preclusive effect.55 Like Western
Pioneer, then, Johnson allowed post-trial review of an order
denying summary judgment only because the order had been entered
on a legal ground that affected the subsequent trial.
D. Reviewability of District Courts Order Denying Summary
Judgment
Considering our own prior rulings and the compelling
weight of the federal cases, we conclude that policy, reason, and
precedent militate in favor of a rule that precludes post-trial
review of orders denying motions for summary judgment at least
when the motions are denied on the basis that there are genuine
issues of material fact.56 We hold, in such cases, that the order
becomes unreviewable after a trial on the merits.
The district court in this case denied summary
judgment to Benediktsson because it determined that a genuine
factual dispute existed as to Larsons employment status. Despite
the trial courts reliance on this factual ground, Benediktsson
claims that the superior courts review of the summary judgment
order was proper. Citing Johnsons statement allowing post-trial
review if the facts applicable to the summary judgment ruling
were not in dispute,57 Benediktsson insists that this case meets
Johnsons condition because both he and the superior court
believed that no issues of material fact prevented summary
judgment and that the only material issue raised a pure legal
question: whether Larson was an employee or a contractor.
But the approach we have adopted focuses on the
district courts basis for ruling, not on Benediktssons or the
superior courts belief that the case could be resolved as a
matter of law. To be sure, Benediktsson could have raised a
similar challenge to the judgment the district court entered
after trial; but he elected not to challenge the courts final
judgment, expressly urging the superior court to review only the
order denying summary judgment and the record before the district
court when it entered that order.
The superior court accepted Benediktssons argument and
reviewed the case on the narrow issue he presented. The court
reversed the district courts summary judgment order, finding that
any unresolved facts were immaterial as a matter of law because
regardless of the case-specific circumstances surrounding Larsons
agreement with Benediktsson the tasks Larson agreed to perform
qualified by literal definition as contractors work and thus
required him to be registered. Yet as we pointed out in
discussing the district courts decision granting Larsons motion
to amend his answer, Larsons employment status did not present a
pure issue of law: under Alaskas flexible approach for
determining contractor status, Larsons agreement to frame houses
for Benediktsson did not, standing alone, make him [a] person
acting in the capacity of a contractor.58 Because resolving the
case-specific facts surrounding the disputed agreement and
Larsons registration status might have made a material
difference, we see no basis for treating the district courts
order denying summary judgment as having been based on a legal
ground arising from undisputed facts.
Since we conclude that the district court denied
summary judgment on factual grounds, it follows that after the
court conducted a trial, its order denying summary judgment was
unreviewable on appeal to the superior court. Since the narrow
form of the rule precluding post-trial review applies here, we
find no need to consider whether the broader form should be
applied in other situations.
IV. CONCLUSION
We hold that an order denying summary judgment on
factual grounds becomes unreviewable on appeal after a trial on
the merits. Applying this rule, we further hold that the
district courts summary judgment order was not reviewable by the
superior court. We also discern no error or abuse of discretion
in the district courts order allowing Larson to amend his answer.
Because Benediktssons appeal challenged no other aspects of the
district courts judgment, we VACATE the superior courts order
granting the appeal, AFFIRM the district courts final judgment,
and REMAND with directions that the district courts judgment be
REINSTATED.
_______________________________
1 The district court entered detailed findings after
trial establishing the basic facts of the case. These findings
have not been challenged on appeal, and we rely on them for our
summary.
2 See AS 34.35.080.
3 While Larsons original motion to amend was pending,
Benediktsson deposited funds with a title company to replace the
liens; this required Larson to file a second motion seeking to
amend the complaint not only to include the counterclaims but
also to add the title company as an indispensable third party.
The district courts order allowing the counterclaim actually
addressed this second amended answer. The order granting the
amendment in turn prompted Benediktsson to amend his original
pleadings to answer Larsons counterclaim, allege affirmative
defenses, assert counterclaims against Larson, and name the title
company as a party. None of these modified pleadings had any
bearing on the issues raised here.
4 Alaska R. Civ. P. 15(a).
5 See, e.g., Shooshanian v. Wagner, 672 P.2d 455, 458
(Alaska 1983).
6 See AS 22.15.050.
7 Alaska R. Civ. P. 15(a).
8 Shooshanian, 672 P.2d at 458.
9 Vertecs Corp. v. Reichhold Chems., Inc., 671 P.2d 1273,
1277 (Alaska 1983).
10 AS 08.18.151.
11 See Gross v. Bayshore Land Co., 710 P.2d 1007, 1010-11
(Alaska 1985); Sumner Dev. Corp. v. Shivers, 517 P.2d 757, 761
(Alaska 1974). AS 08.18.171(4) defines contractor as
a person who, in the pursuit of an
independent business, undertakes or offers to
perform, or claims to have the capacity to
perform, or submits a bid for a project to
construct, alter, repair, move, or demolish a
building, highway, road, railroad, or any
type of fixed structure, including excavation
and site development and erection of
scaffolding; contractor includes a general
contractor, builder, mechanical contractor,
specialty contractor, and subcontractor.
12 See, e.g., Brandner v. Agre, 80 P.3d 691, 694-96
(Alaska 2003); Alaska Protection Servs., Inc. v. Frontier
Colorcable, Inc., 680 P.2d 1119, 1121-23 (Alaska 1984).
13 See, e.g., McCormick v. Reliance Ins. Co., 46 P.3d
1009, 1012 (Alaska 2002); Brandner, 80 P.3d at 694-95.
14 See Gross, 710 P.2d at 1011. Gross states that an
important step is to determine whether the person an unregistered
contractor wants to sue is an intended beneficiary of AS 08.18
but Gross doesnt explicitly express reluctance at prohibiting
unregistered contractors from suing parties the legislature didnt
intend to protect. Id.
15 Id. at 1012.
16 Sumner Dev. Corp., 517 P.2d at 761.
17 Brandner, 80 P.3d at 693-94.
18 Benediktsson specifically emphasizes Johnson v. Alaska
State Dept of Fish & Game, 836 P.2d 896, 904 (Alaska 1991).
19 Ondrusek v. Murphy, 120 P.3d 1053, 1056 n.2 (Alaska
2005).
20 Id.
21 Id.
22 Id.
23 Id.
24 Specifically, we stated:
Often summary judgment motions are denied on
the basis that there are genuine issues of
material fact. At least as to motions denied
on that basis, this court will give serious
consideration in the future to adoption of
what seems to be the majority view concerning
reviewability of summary judgment denials,
when the point is properly raised.
Id.
25 Lama v. Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994)
(The [defendants] attack on the denial of summary judgment has
been overtaken by subsequent events, namely, a full-dress trial
and an adverse jury verdict. In these circumstances, we will not
address the propriety of the denial of summary judgment.); Pahuta
v. Massey-Ferguson, Inc., 170 F.3d 125, 129-30 (2d Cir. 1999);
Chesapeake Paper Prods. Co. v. Stone & Webster Engg Corp., 51
F.3d 1229, 1234-36 (4th Cir. 1995); Black v. J.I. Case Co., 22
F.3d 568, 570-72 (5th Cir. 1994); Jarrett v. Epperly, 896 F.2d
1013, 1016 (6th Cir. 1990); Watson v. Amedco Steel, Inc., 29 F.3d
274, 277-78 (7th Cir. 1994); Johnson Intl Co. v. Jackson Natl
Life Ins. Co., 19 F.3d 431, 434 (8th Cir. 1994); Locricchio v.
Legal Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987); Lind
v. United Parcel Serv., Inc., 254 F.3d 1281, 1284-86 (11th Cir.
2001); Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573-74 &
n.14 (Fed. Cir. 1986). The Tenth Circuit Court of Appeals has
granted post-trial summary judgment, but distinguished that
situation from one in which the summary judgment had been denied
because factual issues existed. Ruyle v. Continental Oil Co., 44
F.3d 837, 842 (10th Cir. 1994). In addition to these published
opinions, the Court of Appeals for the District of Columbia
Circuit has cited some of these cases and refused review in an
unpublished opinion. Robinson v. Garrett, 1992 WL 132470, at *1
(D.C. Cir. May 8, 1992).
Although we confine our discussion of the test to
federal cases, we note that many state courts likewise reject
post-trial appeals of orders denying summary judgment. The
reasoning of these courts echoes that of the federal courts.
See, e.g., Evans v. Jensen, 655 P.2d 454, 459 (Idaho App. 1982)
(explaining that a final judgment after trial should be tested
upon the record made at trial not at the time summary judgment
was denied); Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004)
(explaining that after a full trial on the merits the denial of
summary judgment merges with the trial); Morgan v. American
Univ., 534 A.2d 323, 326 (D.C. 1987); Skowronski v. Sachs, 818
N.E.2d 635, 638 n.5 (Mass. App. 2004) (explaining that no right
to review exists when case has proceeded to trial on the merits,
unless summary judgment issue was on a different claim than was
tried).
26 E.g., Johnson Intl Co. v. Jackson Natl Life Ins. Co.,
19 F.3d 431, 434 (8th Cir. 1994).
27 Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.
Cir. 1986) (quoting Switzerland Cheese Assn, Inc. v. E. Hornes
Market, Inc., 385 U.S. 23, 25 (1966)).
28 Johnson Intl Co., 19 F.3d at 434.
29 E.g., Chesapeake Paper Prods. Co. v. Stone & Webster
Engg Corp., 51 F.3d 1229, 1235 (4th Cir. 1995); Black v. J.I.
Case Co., 22 F.3d 568, 571 n.5 (5th Cir. 1994).
30 Black, 22 F.3d at 571 n.5.
31 Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359
(9th Cir. 1987) (quoted as persuasive in Jarrett v. Epperly, 896
F.2d 1013, 1016 n.1 (6th Cir. 1990)).
32 Holley v. Northrop Worldwide Aircraft Servs., Inc., 835
F.2d 1375, 1378 (11th Cir. 1988).
33 Id. at 1377.
34 Id. at 1378.
35 Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1283-
84 (11th Cir. 2001). In Chesapeake Paper Products Co., 51 F.3d
at 1235 n.8, the Fourth Circuit Court of Appeals similarly
declined to follow Holleys fact-based bar, opting instead to join
courts applying the broader rule barring all post-trial appeals
of orders denying summary judgment.
36 Watson v. Amedco Steel, Inc., 29 F.3d 274, 279 (7th
Cir. 1994).
37 Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1318 (7th
Cir. 1995) ([T]he principle that an order denying summary
judgment is rendered moot by trial and subsequent judgment on the
merits is intended for cases in which the basis for the denial
was that the party opposing the motion had presented enough
evidence to go to trial.).
38 Ruyle v. Continental Oil Co., 44 F.3d 837, 842 (10th
Cir. 1994).
39 Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th
Cir. 1992).
40 Ruyle, 44 F.3d at 842.
41 Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130 (2d
Cir. 1999) (Based on our review of the case law in this circuit,
the Federal Rules of Civil Procedure, the reasoning of other
circuits, and principles of judicial economy, we now join the
rising chorus of circuits that have concluded that such an appeal
will not ordinarily lie.).
42 Rothstein v. Carriere, 373 F.3d 275, 283-84 (2d Cir.
2004) (holding that a party need not make any motion at trial to
preserve question whether district court erred as a matter of law
in denying summary judgment motion when disputed order ignored
applicable state law).
43 Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 149
(3d Cir. 1992).
44 Id. at 149-50.
45 Ondrusek v. Murphy, 120 P.3d 1053, 1056 n.2 (Alaska
2005).
46 Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d
654, 655-56 (Alaska 1991).
47 Id. at 656.
48 Id.
49 Id. at 658.
50 Id.
51 Johnson v. Alaska State Dept of Fish & Game, 836 P.2d
896, 903-04 (Alaska 1991).
52 Id.
53 Id. at 904.
54 Id. at 904 n.11.
55 Id. at 900.
56 Ondrusek, 120 P.3d at 1056 n.2.
57 Johnson, 836 P.2d at 904 n.11.
58 AS 08.18.151.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
