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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. K & K Recycling v. Alaska Gold Co. (11/14/2003) sp-5752

K & K Recycling v. Alaska Gold Co. (11/14/2003) sp-5752

     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 ALASKAK &  K  RECYCLING,
     INC.,              )                                  )
     Supreme   Court   No.  S-10303               Appellant,
     )                              )     Superior Court No.
     v.                           )       4FA-98-02362    CI
     )ALASKA  GOLD COMPANY and )    O P I N I O  NGEORGE  W.
     SEUFFERT,  SR.,       )                               )
     [No.  5752  - November 14, 2003]             Appellees.
     )________________________________)
     )GEORGE      W.     SEUFFERT,      SR.,               )
     )      Supreme  Court  No.  S-10323              Cross-
     Appellant,            )                               )
     v.                                                    )
     )K      &      K      RECYCLING,     INC.,            )
     )                                       Cross-Appellee.
     )________________________________)
     )ALASKA         GOLD         COMPANY,                 )
     )      Supreme  Court  No.  S-10324              Cross-
     Appellant,            )                               )
     v.                                                    )
     )K      &      K      RECYCLING,     INC.,            )
     )                                       Cross-Appellee.
     )________________________________)Appeal    from    the
     Superior Court of the State of Alaska,  Fourth Judicial
     District, Fairbanks, Niesje J. Steinkruger, Judge,  and
     Raymond M. Funk, Judge pro tem.Appearances:  Joseph  W.
     Sheehan,  Law Offices of Joseph W. Sheehan,  Fairbanks,
     for   Appellant/Cross-Appellee  K&K   Recycling,   Inc.
     Nelson  G.  Page, Burr, Pease & Kurtz,  Anchorage,  for
     Appellee/Cross-Appellant Alaska Gold Company.   Stanley
     T.  Lewis,  Birch, Horton, Bittner & Cherot, Anchorage,
     for   Appellee/Cross-Appellant  George   W.   Seuffert,
     Sr.Before:   Fabe,  Chief Justice, Matthews,  Eastaugh,
     Bryner,   and   Carpeneti,   Justices.    FABE,   Chief
     Justice.I.     INTRODUCTION        K&K Recycling,  Inc.
     contracted with Alaska Gold Company (AGC) to  remove  a
     gold  dredge from AGC's land in Chicken.  AGC  assigned
     the  contract to George Seuffert. After K&K removed the
     dredge  despite  alleged interferences by  Seuffert,  a
     dispute  arose over K&K's entitlement to equipment  and
     facilities  in  the  Old  Town  of  Chicken   allegedly
     associated  with  the dredge, and a  round  of  summary
     judgment  motions  ensued.  A second round  of  summary
     judgment  motions  followed concerning  the  claims  in
     K&K's amended complaint alleging breach of contract and
     tortious interference by Seuffert and AGC.  This appeal
     involves  numerous challenges to the  superior  court's
     orders  on  these  summary judgment motions  and  on  a
     variety  of  other  issues.  We  reverse  the  superior
     court's grant of summary judgment on the issue  of  the
     dredge  equipment and facilities in  the  Old  Town  of
     Chicken,  and we affirm the remainder of the challenged
     rulings.II.    FACTS AND PROCEEDINGS
          A.   Factual History          In 1996 Alaska Gold

          Company started looking into disposing of seven of its

          gold dredges, considering them to be environmental and

          personal injury liabilities.  AGC's vice-president in

          charge of lands, Michael Watson, contacted AGC's

          Fairbanks manager, Pete Eagan, for suggestions on

          disposing of the dredges.  Eagan connected him with K&K

          Recycling, Inc., a company that recycles property.

          Although AGC sold six of the dredges to other parties,

          AGC and K&K signed a contract on June 25, 1997

          concerning the remaining dredge, located on an AGC

          mining claim in Chicken.      The contract encompassed

          "all of [AGC's] right, title and interest in and to

          gold dredge #4 (the `Dredge'), together with all

          attached equipment and related facilities, located on

          the #5 Below Discovery placer mining claim in the

          vicinity of Chicken." K&K agreed to purchase the dredge

          from AGC for one dollar and to move the dredge from

          AGC's property within seventeen months.  At least ten

          days prior to moving the dredge, K&K had to provide AGC

          with a $250,000 surety bond guaranteeing performance

          and proof of minimum insurance coverage with certain

          limits and features. Within ten days of K&K's tender,

          AGC had to give K&K a bill of sale for the dredge.

          While AGC was negotiating with K&K, AGC rejected an

          offer by George W. Seuffert, a retired anesthesiologist

          who mines gold with his wife Ingrid and son George Jr.,

          to buy AGC's mining claims at Chicken, including the

          dredge and equipment. About a year later, Seuffert

          offered a higher price for "all buildings and contents

          and all mining equipment."  Seuffert reached agreement

          with AGC, and in early March 1998, AGC and Seuffert

          executed a variety of documents, including a purchase

          and sale agreement and an assignment from AGC to

          Seuffert of certain agreements, including the K&K

          contract.  Seuffert's deed conveyed all thirty-eight of

          AGC's mining claims and "any and all improvements

          situated thereon."  Neither AGC nor Seuffert informed

          K&K of the assignment.        Shortly thereafter,

          Seuffert called K&K's owner, Bernie Karl, told him that

          he had purchased AGC's Chicken claims, and

          unsuccessfully tried to buy the contract to remove the

          dredge.  In early June 1998, Seuffert asked AGC for a

          bill of sale for the dredge, which AGC provided. The

          bill of sale contained a clause stating that Seuffert

          "assumes all obligations and liabilities respecting the

          Dredge, including all terms and conditions of that

          certain agreement . . . between [AGC] and [K&K]."  It

          appears that neither AGC nor Seuffert told K&K about

          the bill of sale.        On June 15, 1998, K&K procured

          the performance bond required by its contract.  AGC

          Fairbanks manager Eagan told K&K's Karl to send the

          bond, the insurance, and one dollar to AGC when K&K was

          ready to move the dredge.  Sometime that same month,

          Seuffert moved his mining camp in front of the dredge,

          blocking the most obvious route for removing the

          dredge.  Seuffert also blocked the access roads to the

          dredge with dirt berms.       In July 1998 Seuffert

          received a letter from an environmental consultant

          stating that the dredge might contain hazardous

          materials that could cause contamination if the dredge

          were dismantled and recommending preparation of an

          environmental assessment and work plan.  Twice that

          month, Seuffert contacted the Army Corps of Engineers

          to ask whether the dredge pond would be considered

          wetlands, whether a permit would be needed if K&K

          dismantled the dredge, and whether the Corps would

          exercise jurisdiction over movement of the dredge.  In

          addition, Ingrid Seuffert contacted the Department of

          Natural Resources to find out what it would do if K&K

          moved the dredge by cutting down trees to widen a right-

          of-way.        On July 31, 1998, Karl found that a lock

          he had placed on the dredge had been removed and that

          items were missing from the dredge.  Karl then had a

          confrontation with an armed Ingrid Seuffert, who

          ordered Karl off the property.  While leaving, Karl

          noticed parts and equipment on #6 Below Discovery, an

          adjacent claim also known as the "pipe yard," that he

          believed were associated with the dredge.

          Seuffert's attorney, Stanley Lewis, faxed Karl a letter

          on August 4 charging K&K with trespass, asserting that

          K&K had no right of entry on the land, and requesting

          environmental approvals and assessments.  The letter

          declared that Lewis had "reviewed [K&K's] . . .

          agreement with [AGC] (which has been assigned by AGC to

          Dr. Seuffert)" and concluded that K&K's claim of

          ownership of the dredge was unfounded.  The letter

          stated that "[r]easonable written requests to enable

          K&K to perform its contract obligations will not be

          denied."  Lewis enclosed a copy of Seuffert's bill of

          sale for the dredge but did not provide a copy of the

          assignment.         On August 7, 1998, K&K sent AGC the

          performance bond, an insurance certificate, and a check

          for one dollar, plus a threat of litigation if the

          contractual commitments were not met.  AGC forwarded

          this to Seuffert.  A few days later, Karl faxed a

          follow-up letter to AGC requesting a response, advising

          that K&K had never been informed that AGC sold the

          dredge and assigned the contract to Seuffert, and

          declaring that K&K had fulfilled its agreement and

          expected cooperation.         On August 17 AGC mailed

          K&K a letter rejecting its tender, telling K&K to

          tender to Seuffert, and attaching copies of the

          assignment and bill of sale.  On August 18, apparently

          before receiving this letter, K&K faxed AGC requesting

          notice of any claimed deficiencies in its tender and

          declaring that it had no responsibility to, and would

          not, deal with Seuffert, because K&K's agreement was

          with AGC.      On August 20 Seuffert faxed K&K a letter

          from the Corps asserting jurisdiction and prohibiting

          movement of the dredge without a permit.  In late

          August K&K contacted the Corps to show or confirm that

          no permit was required.  After K&K's contact, the Corps

          reversed its position.  The Department of Natural

          Resources also ultimately determined that no permit was

          needed because K&K was not using a government right-of-

          way.      On August 26 K&K re-tendered by fax to both

          AGC and Seuffert, including a new certificate of

          insurance listing both of them as additional insureds.

          Seuffert notified AGC that he objected to the insurance

          certificate, the performance bond, and K&K's moving

          plan.  AGC forwarded Seuffert's objections to K&K and

          told K&K to deal directly with him.  On September 2,

          1998, K&K provided both a new insurance certificate to

          meet Seuffert's objections and the Corps letter

          indicating that no permit was needed.  On September 8,

          following Seuffert's compromise offer to resolve the

          performance bond issue, K&K agreed to allow title to

          the dredge to remain in Seuffert's name until the

          dredge was removed from the property.        On

          September 9 Seuffert authorized K&K to remove the

          dredge and its associated equipment and facilities on

          #5 Below Discovery.  The next day, K&K informed

          Seuffert that it would commence removal operations on

          September 12.  When K&K arrived on September 12 to

          start moving the dredge, Seuffert had partially removed

          the berm blocking the access road but had left his camp

          in front of the dredge.  K&K finished the berm removal

          and asked Seuffert to move his camp as it was blocking

          the easiest route for removing the dredge, but Seuffert

          refused.  K&K thus had to excavate and backfill a pit

          and construct a ramp in poor soil, but it successfully

          removed the dredge from the dredge pond.  Once K&K had

          the dredge moving, Ingrid Seuffert asked their neighbor

          and lessee Crystal Fagundes-Burns to block K&K from

          crossing her lease, but she declined.  Seuffert then

          required K&K to build a ramp to cross the Taylor

          Highway.  K&K nonetheless timely moved the dredge,

          completing the move on October 12.  This was twenty

          days later than K&K's initial estimate, which had been

          based upon using the easiest route.          Prior to

          beginning removal operations on September 12, K&K told

          Seuffert that it believed that not all of the "attached

          equipment and related facilities" covered by the

          agreement were on #5 Below Discovery.  Seuffert offered

          to let Karl inspect "the other areas of [his] property"

          and tag those items to which K&K believed it was

          entitled.  On September 17 Karl and Seuffert walked #5

          and #6 Below Discovery together and tagged items.  Karl

          offered to give some of the disputed items to Seuffert,

          with K&K getting most of the items on #5 Below

          Discovery and in the "pipe yard"; Seuffert accepted,

          and they shook hands.  K&K began removing the agreed-

          upon equipment and facilities on October 12, the same

          day it completed the dredge move.  On October 13 Karl

          discovered items in an old mining camp, the Old Town of

          Chicken, that he believed went with the dredge.  After

          K&K finished removing the agreed-upon items, K&K

          advised Seuffert that there were items in the Old Town

          that it wanted.  After several unsuccessful attempts to

          procure the equipment and facilities in the Old Town,

          K&K proceeded with litigation.  K&K conducted a court-

          authorized inspection of the Old Town in July 1999,

          discovering property it claimed was associated with the

          dredge.   B.   Procedural History       In early

          September 1998, K&K filed a complaint and a motion for

          a temporary restraining order and preliminary

          injunction to gain access to remove the dredge.  The

          injunction hearing occurred on September 21 before pro

          tem Superior Court Judge Raymond M. Funk.  By that

          point, K&K had started removal, so there was no need to

          consider an injunction.  The hearing therefore

          addressed the moving of the dredge and the agreement

          between Seuffert and K&K concerning the "pipe yard"

          equipment.          Following K&K's court-authorized

          inspection of the Old Town, Seuffert filed a summary

          judgment motion in August 1999 contending that K&K was

          not entitled to the Old Town or its contents under its

          agreement with AGC or, alternatively, that K&K and

          Seuffert had reached an accord and satisfaction at the

          injunction hearing whereby K&K released its claim

          concerning the Old Town and its contents.  K&K opposed

          Seuffert's motion and filed a cross-motion for summary

          judgment arguing that the contract encompassed the Old

          Town and its contents and that AGC as an assignor was

          liable for Seuffert's acts and omissions.  On the same

          day, K&K filed a Rule 56(f) motion seeking to depose

          the Seufferts and Michael Watson, AGC's former vice-

          president in charge of lands, if the court denied its

          cross-motion for summary judgment.  Superior Court

          Judge Niesje J. Steinkruger denied K&K's Rule 56(f)

          motion.        In October 1999 K&K filed an amended

          complaint alleging breach of contract, repudiation,

          breach of the implied covenant of good faith and fair

          dealing, interference with contractual relations and

          prospective economic opportunity, conversion, trespass,

          and wrongful withholding of property; it also included

          a claim for punitive damages.  Ten days later, AGC

          opposed K&K's summary judgment motion and filed a

          motion to dismiss, arguing that the contract was

          assignable and that the agreement between Seuffert and

          K&K at the injunction hearing constituted a novation.

          In November 1999 the court permitted K&K to amend its

          complaint.          Judge Steinkruger granted

          Seuffert's motion for summary judgment and denied AGC's

          motion to dismiss.  K&K filed a Rule 77(k) motion for

          reconsideration because the court had not ruled on its

          summary judgment motion, because granting Seuffert's

          motion and denying AGC's was inconsistent, and because

          K&K discovered additional evidence not previously

          available.  Judge Steinkruger then issued orders

          granting AGC's motion to dismiss (vacating the previous

          denial), denying K&K's motion for reconsideration, and

          denying K&K's motion for summary judgment.        The

          parties filed a second round of summary judgment

          motions on the issues raised by K&K's amended

          complaint.  In October and November 2000, Superior

          Court Judge Raymond M. Funk: (1) granted AGC summary

          judgment on K&K's claim that AGC's rejection of K&K's

          tender was a breach of contract; (2) denied all summary

          judgment motions on K&K's claim that AGC's assignment

          to Seuffert constituted negligence and a breach of

          contract; (3) granted AGC and Seuffert summary judgment

          on K&K's claim that the August 4 letter was a

          repudiation and material anticipatory breach; (4)

          denied all summary judgment motions on the claim that

          Seuffert's contact with government agencies constituted

          a breach of the implied covenant of good faith and fair

          dealing; (5) granted AGC and Seuffert summary judgment

          on the tortious interference claims; (6) denied all

          parties summary judgment on whether AGC was jointly and

          severally liable for Seuffert's actions; (7) granted

          AGC and Seuffert summary judgment on the claims of

          conversion, trespass, and wrongful withholding of the

          Old Town and its contents; and (8) dismissed the

          punitive damages claim.       K&K's claims for breach

          of contract and breach of the covenant of good faith

          and fair dealing went to trial in January 2001.  At the

          end of K&K's case-in-chief, Seuffert moved for a

          directed verdict on the issue of K&K's damages,

          claiming that K&K used the disapproved total cost

          method and failed to prove its case.  Judge Funk

          declined to direct a verdict in Seuffert's favor on

          this issue.  The jury entered a verdict for K&K,

          finding that Seuffert and AGC breached the contract and

          the implied covenant of good faith and fair dealing,

          and that AGC wrongfully assigned the agreement to

          Seuffert.  The jury awarded a total of $123,051 to K&K

          for Seuffert's and AGC's various actions to impede

          K&K's ability to remove the dredge: $500 for Seuffert's

          contact with governmental agencies, $73,530 against AGC

          and Seuffert for Seuffert's placement of his camp, $1

          against AGC and Seuffert for the berm placement, and

          $49,020 against AGC for the assignment to Seuffert.

          Judge Funk awarded prejudgment interest accruing from

          August 7, 1998, when K&K sent its letter containing the

          threat of litigation.  Final judgment was entered

          against Seuffert and AGC in September 2001.       K&K

          appeals the court's orders concerning the dredge

          equipment and facilities in the Old Town and its denial

          of K&K's Rule 56(f) motion for additional discovery and

          Rule 77(k) motion to reconsider.  K&K also appeals the

          superior court's denial of its summary judgment motions

          for breach of contract, repudiation, interference with

          a contract or prospective economic opportunity, joint

          and several liability, and conversion/trespass, as well

          as the court's dismissal of K&K's punitive damages.

          Finally, K&K challenges three jury instructions on

          damages.       AGC appeals the court's refusal to enter

          summary judgment on its claims that the contract was

          assignable and that the novation meant that AGC was not

          liable for Seuffert's conduct.  AGC also appeals the

          court's award of attorney's fees to K&K as the

          prevailing party.        Seuffert appeals the court's

          denial of his motion for a directed verdict on K&K's

          method of proving delay damages, its denial of his

          motion for summary judgment on K&K's claim of breach of

          the implied covenant of good faith and fair dealing by

          contacting government agencies, and the applicability

          to the camp location and berm claims of the court's

          order that prejudgment interest shall run on all claims

          from August 7, 1998.III. DISCUSSION

     A.   The Superior Court Erred in Granting Seuffert Summary
          Judgment on the Issue of the Equipment and Facilities
          in the Old Town.
          
          Seuffert's summary judgment motion argued that K&K was

not entitled to the Old Town or its contents under its agreement

with AGC or, alternatively, that K&K and Seuffert had reached an

accord and satisfaction at the injunction hearing whereby K&K

released its claim concerning the Old Town and its contents.

K&K's summary judgment contended that the contract encompassed

"all equipment and facilities associated with the operation of

the dredge, regardless of where located on AGC's Chicken claims."

The superior court granted Seuffert's motion and denied K&K's,

but it is unclear if the court based this decision on contract

interpretation or on the accord and satisfaction argument.

Because genuine issues of material fact exist, we reverse the

grant of summary judgment to Seuffert.

                    1.   Standard of review

          We review orders granting or denying summary judgment

de novo.1 "Drawing all reasonable inferences in favor of the

nonmoving party, we will uphold summary judgment if no genuine

issue of material fact exists and the moving party is entitled to

judgment as a matter of law."2  In particular, a grant of summary

judgment based upon contract interpretation is subject to de novo

review because interpretation of contract language is a question

of law.3  The intent of the parties when entering a contract is a

question of fact and is thus reviewed under the clearly erroneous

standard; summary judgment is improper when the evidence before

the superior court establishes a factual dispute as to the intent

of the contracting parties.4

                    2.   Contract interpretation could not
               support a grant of summary judgment to Seuffert or
               K&K as to personal property and equipment in the
               Old Town of Chicken, but the buildings in the Old
               Town were not included in the contract.
               
          Seuffert maintains that under K&K's contract with AGC

to remove the dredge, K&K was only entitled to "attached

equipment and related facilities" located on #5 Below Discovery.

K&K counters that the contract includes "facilities associated

with the operation of the dredge" in the Old Town and implies

that this includes the buildings in the Old Town.  In determining

a contract's meaning, "[t]he parties' expectations must be

gleaned not only from the contract language, but also from

extrinsic evidence."5  The words of the contract are nevertheless

the most important evidence of intention.6

          The plain language of the contract states:

          AGC agrees . . . to sell to K&K all of its
          right, title and interest in and to gold
          dredge #4 (the "Dredge"), together with all
          attached equipment and related facilities,
          located on the #5 Below Discovery placer
          mining claim in the vicinity of Chicken,
          Alaska . . . for the sum of One Dollar
          ($1.00) and other considerations.
          
K&K focuses on the phrase "together with all attached equipment

and related facilities" and argues that while the contract uses

the mining claim to identify the location of the dredge, K&K is

entitled to any equipment or facilities "related" to that dredge

regardless of location.  Indeed, Seuffert conceded at oral

argument that dredge parts could be in the Old Town and that a

factual issue exists as to whether K&K and AGC intended those

items to be part of the sale.

          It seems unlikely looking at the contract language that

the Old Town itself was included.  But Eagan, AGC's Fairbanks

agent who was consulted on the contract's wording, testified by

affidavit that he advised AGC that the "related facilities"

language essentially "encompass[ed] everything on the Chicken

claims except for the claims themselves.  Clearly every building

and all facilities, and all of the equipment on the Chicken

claims were there for purposes of supporting the dredging

operation, and related directly to the dredging operation."  When

that language remained in the contract, Eagan concluded that AGC

intended the contract to include not only the dredge but also all

equipment and facilities in the "pipe yard" and the Old Town.

Eagan however did not testify that he conveyed his understanding

of the meaning of the related facilities language to Karl before

or contemporaneously with the making of the agreement.

          Gary Barker, AGC's president who had knowledge of the

contract as Watson's supervisor, similarly stated in an affidavit

that K&K was entitled to remove the dredge from #5 Below

Discovery and to remove dredge parts "from any other area."  He

maintained, however, that he would not have allowed K&K to remove

buildings or other items, except for dredge parts, from the Old

Town without a separate contract and further payment.

          The affidavits of Eagan and Barker, both of whom were

AGC agents at the time,  confirm that the contract was meant to

include dredge parts wherever they may be located, including in

the Old Town, and create a genuine issue of material fact as to

whether the contract encompasses other related facilities in the

Old Town.  But conduct and admissions of K&K preclude the

inclusion of the buildings in the Old Town as "related

facilities."  When the agreement reflected in the proceedings of

September 21, 1998 was negotiated, Karl was aware of the

existence of the Old Town yet made no claim to the buildings that

are there.  In his letter of September 10, 1998, Joseph Sheehan,

attorney for K&K, discusses the remaining disagreement over

"attached equipment and related facilities."  He states in part

that "I am further informed that the equipment and related

facilities are unique to this dredge and would only fit this

dredge.  These items should be fairly easy to identify."  This

description of "equipment and related facilities" plainly

excludes the Old Town buildings.

          Moreover, sometime before October 16, 1998, Karl walked

through the Old Town and identified equipment he thought was

associated with the dredge.  Richard Haggart, attorney for

Seuffert, faxed Sheehan a letter suggesting that now that the

dredge was moved as well as all of the materials identified in

court, a stipulation dismissing the case would be appropriate.

Sheehan faxed back on October 16 as follows:

               In response to your October 15, 1998,
          correspondence, you  are correct, the Dredge
          move has been completed.  As of yet, not all
          of the equipment and related facilities have
          been moved.  I cannot give you a list of
          items left to be moved, however, I am told
          that there are a number of items, some of
          which are in the warehouse, blacksmith shop,
          machine shop, and parts in the vicinity of
          these buildings.  K&K has not moved any of
          these items, because Mr. Seuffert was not
          available when K&K was ready to make the
          move.  K&K has since demobilized for the
          winter.  K&K will complete the movement of
          the remaining equipment and related
          facilities as soon as the spring weather
          permits.
               K&K is not prepared to dismiss the
          pending litigation until all of the property
          is moved.  I will be filing a status report
          with the court advising my understanding of
          where we are.
(Emphasis added.)  The language of this letter makes it clear

that what is in dispute are the items contained within and in the

vicinity of these buildings, not the buildings themselves.  An

affidavit signed by Bernie Karl, president of K&K, dated October

30, 1998, also makes clear that what is in dispute is "a

substantial amount of equipment and related facilities located in

the warehouse, blacksmith shop, machine shop, and in the vicinity

of these buildings" not the buildings themselves.  Karl continues

in his affidavit:

               Previously, when I had discussions with
          Mr. Seuffert concerning the equipment and
          related facilities, no mention was made of
          the items in the warehouse, blacksmith shop,
          machine shop, and the vicinity of these
          buildings.  I do not know if Mr. Seuffert is
          aware of what is in these buildings, or
          whether he is aware that these items are only
          usable with the dredge owned by K&K.
          
          On November 9, 1998, Haggart on behalf of Seuffert
again inquired of K&K's counsel as to what K&K was "now claiming
with respect to `related equipment and facilities' ":
          I have reviewed the tape of proceedings
          before Judge Funk on September 21, 1998, and
          it appears quite clear that the parties
          placed a settlement on the record stating
          that all issues relating to identification
          and division of the "related equipment and
          facilities" had been resolved.  It now
          appears that K&K is taking the position that
          additional material is due them under the
          contract, which would be a change from what
          was stated in court.
               This does not seem appropriate given the
          fact that K&K presumably had ample
          opportunity to inspect the property it was
          buying at the time it negotiated the sale
          with AGC, it had an opportunity to identify
          all property claimed prior to the court
          hearing of September 21st, and the settlement
          placed on the record in open court clearly
          specified that the issue had been entirely
          resolved between the parties.
               If we are talking a matter of a few feet
          of pipe, then obviously Mr. Seuffert is not
          interested in returning the matter to full
          scale litigation.  If K&K's claims are more
          extensive, please provide a specification of
          exactly what is claimed, and why K&K, at this
          late date, believes it is entitled to set
          aside the previous settlement agreement.
Sheehan responded in part:
               Mr. Karl did not mention the equipment
          located in the warehouse, blacksmith shop,
          machine shop, and in the vicinity of those
          buildings because he was unaware of what was
          in these buildings.  Mr. Seuffert represented
          that there was no other equipment and related
          facilities, other than what was in plain
          view.
               As far as an inventory, I do not have
          one.  Perhaps the best way to address this
          problem is have Seuffert and Karl coordinate
          a time to meet in Chicken to review and
          inventory the property.  We are open to a
          suggested date this winter or early spring.
          Let me know how you want to proceed.
(Emphasis added.)  Again, in specific response to Seuffert's
counsel's request to identify what K&K was claiming as related
equipment and facilities, Sheehan responded that equipment in the
buildings was included, and did not list the buildings
themselves.
          On December 1 Sheehan tentatively suggested that the
inspection and inventory take place on April 1, 1999.  The
meeting did not take place then.  But on April 28, 1999, Sheehan
wrote Haggart proposing a meeting on May 9 or May 10 "[w]ith
respect[] to the remaining personal property . . . ."  By
referring to the outstanding dispute as one concerning "remaining
personal property" the claim clearly excluded the Old Town
buildings.  Similarly, Karl in his affidavit of October 30, 1998,
refers to the items that he was still due under the AGC agreement
as personal property:
               When I returned in September to move the
          dredge, it had been broken into and some
          items of personal property had been removed.
          I found most of these items of personal
          property in the dredge warehouse.  I do not
          know who is responsible for this conduct,
          however, I do know that these items along
          with a number of other items in the buildings
          which I have identified, belong to the dredge
          and can only be used in conjunction with the
          particular dredge.  Other items are
          associated with the dredge in that they are
          used as support equipment.  By the time I
          discovered these other items of personal
          property Mr. Seuffert was gone, K&K was
          already in the process of demobilizing, and
          winter was setting in.  For these reasons I
          did not move any of these items.  My intent
          is to return in the spring, soon after break-
          up, to retrieve these items.
(Emphasis added.)
          In view of the above, there can be no genuine issue of
material fact but that "related facilities" as used in the
contract was a reference to personal property and did not include
the buildings in Old Town.
          Because genuine issues of material fact exist as to

which items in the Old Town count as "equipment and related

facilities," we conclude that contract interpretation could not

support a grant of summary judgment to any of the parties on this

issue with respect to personal property.  However, conduct and

admissions of K&K make clear that the buildings in Old Town were

not included in K&K's contract with AGC.

          3.   There was no accord and satisfaction.

          Seuffert also argues that he was entitled to summary

judgment because K&K and Seuffert reached an accord and

satisfaction at the injunction hearing.  "An accord is a contract

between a creditor and debtor for a settlement of the creditor's

claim by some performance other than that which is due.

Satisfaction is the performance of such a contract."7  An accord

and satisfaction discharges the original duty, so any breach of

the new duty provides no right of action on the old duty.8

Antecedent discussions of the accord are ordinarily required to

show the existence of an intent to agree on an accord.9  The

burden of demonstrating that material issues of fact exist

concerning a party's intent to enter an accord is a light one;

"issues of material fact are easily raised in scrutinizing an

alleged accord and satisfaction."10

          Seuffert locates the alleged accord in his disagreement

with K&K over the meaning of "attached equipment and related

facilities," the walking of the property to tag items, the

handshake on the division of items, and the testimony at the

hearing as to the nature of the "division agreement."  This

accord was satisfied, Seuffert states, because K&K removed the

agreed-upon items.  K&K does not dispute that there was an

agreement between Karl and Seuffert as to how the items in the

"pipe yard" should be treated, but it deems this irrelevant to

its case.  K&K notes that the only property issue discussed at

the injunction hearing was the "pipe yard" equipment; the

equipment and facilities in the Old Town were never mentioned,

since Karl had not yet learned of them.

          Nothing in the record indicates that the agreement

between Seuffert and Karl was meant to settle the whole

litigation, create a new contract, or satisfy the contract.11  The

agreement was never put on record as an accord and satisfaction,

and Judge Funk, who presided over the hearing and who later

presided over the case, was skeptical that an accord and

satisfaction had been agreed to at that hearing.  Rather, the

agreement between K&K and Seuffert apparently was made in an

attempt to settle the immediate issue before them, namely

ownership of the items in the "pipe yard" and on #5 Below

Discovery.

          Because there was no evidence of an intent to supersede

the original contract or to settle all issues in the litigation,

the superior court's grant of summary judgment cannot be affirmed

on the alternative ground of accord and satisfaction.12

Accordingly, we reverse the superior court's grant of summary

judgment to Seuffert on the issue of the dredge equipment and

facilities in the Old Town.13

          B.   The Superior Court Did Not Err in Granting AGC and
          Seuffert Summary Judgment on K&K's Repudiation Claims.
          
          K&K argues that the August 4 letter from Seuffert's

attorney was a repudiation and material anticipatory breach

because it made demands that were "inconsistent with the terms of

the K&K/AGC agreement."  To be a repudiation, "a party's language

must be sufficiently positive to be reasonably interpreted to

mean that the party will not or cannot perform."14  A repudiation

could also involve language that clearly manifests an "intention

not to perform except on conditions which go beyond the

contract[.]"15  Similarly, to be an anticipatory breach based on a

request for additional conditions, "the request must be coupled

with an absolute refusal to perform unless the request is

granted."16

          K&K contends that the letter imposed materially

different conditions.  For instance, Eagan testified that AGC

would not have required the approval of government agencies,

would not have required a written work plan, and would not have

considered K&K to be trespassing when it went to inspect the

dredge.  While Seuffert's letter does appear to impose some new

restrictions on access to the dredge, several other "conditions"

such as the work plan were phrased merely as requests.

Furthermore, Seuffert's request for tender and his statement that

"[r]easonable written requests to enable K&K to perform its

contract obligations will not be denied" show that the letter did

not convey an unequivocal refusal to perform.  Accordingly, the

court did not err in granting AGC and Seuffert summary judgment

on this issue.

          Similarly, we reject K&K's contention that the court

erred in not granting it summary judgment on its claim that

Seuffert's relocation of his camp, his placement of a berm on the

dredge access road, and his refusal to move his camp all

constitute acts of repudiation and thus breach of the contract

because they are "[s]tatements and/or acts which add terms and

are inconsistent with the terms and performance of the contract."

K&K claims Seuffert relocated his camp and refused to move it in

order to preclude movement of the dredge, whereas Seuffert claims

he had no such intent and that other suitable areas were leased

by someone else.  Because genuine issues of material fact clearly

existed concerning Seuffert's intent in making the camp and berm

decisions, the superior court did not err in denying K&K summary

judgment.  The issue properly went to the jury, who reasonably

ruled that Seuffert's camp and berm placements constituted

breaches of the contract.

          C.   The Superior Court Did Not Err in Granting AGC and
          Seuffert Summary Judgment on K&K's Tort Claims.
          K&K alleged in its amended complaint that Seuffert's

actions and AGC's failure to intervene amounted to tortious

interference with K&K's contractual rights and prospective

business opportunities.  K&K also contended that AGC and Seuffert

interfered with and precluded K&K's recovery of the dredge,

constituting conversion and trespass.  K&K further maintained

that Seuffert and AGC were wrongfully withholding the Old Town's

contents.  K&K challenges the court's grant of summary judgment

to AGC and Seuffert, and its denial of summary judgment to K&K,

on these tort claims.17  If any of its tort claims survive, K&K

also challenges the court's dismissal of its punitive damages

claim.  We affirm the superior court's rulings.

                    1.   Tortious interference with a contract

          To establish a claim of tortious interference with a

contract, a plaintiff must show: (1) an existing contract between

it and a third party; (2) defendant's knowledge of the contract

and intent to induce a breach; (3) breach; (4) wrongful conduct

of the defendant causing the breach; (5) damages; and (6) absence

of privilege or justification for the defendant's conduct.18  A

party to a contract cannot be liable for tortiously interfering

with that contract.19  Because AGC is undeniably a party to the

contract, this claim cannot lie against AGC.  Given that the

assignment essentially gave Seuffert the rights of a party,

Seuffert was not a true outsider to the contract, and thus this

claim also could not lie against him.20

                    2.   Tortious interference with a prospective

business opportunity

          To establish a claim for tortious interference with a

prospective business opportunity, a plaintiff must show:  (1) an

existing prospective business relationship between it and a third

party; (2) defendant's knowledge of the relationship and intent

to prevent its fruition; (3) failure of the prospective

relationship to culminate in pecuniary benefit to the plaintiff;

(4) conduct of the defendant interfering with the prospective

relationship; (5) damages caused by the defendant; and (6)

absence of privilege or justification for the defendant's

conduct.21

          K&K alleges that it had prospective opportunities to

market the dredge as a tourist attraction and that Seuffert and

AGC knew of and intentionally interfered with these

opportunities.  The focus of K&K's argument really seems to be

that Seuffert's concealment of the equipment and facilities in

the Old Town, and Seuffert's and AGC's refusal to recognize K&K's

right to them, have precluded K&K from operating the dredge as a

tourist attraction because the dredge cannot be operated without

those parts.  K&K's claim fails, however, because the record

contains no evidence of an existing prospective business

opportunity with tourists.  Karl testified that K&K had not made

any commitments to third parties to have the dredge operate as a

tourist attraction.  There is also no evidence that AGC or

Seuffert knew of any such commitment and intended to interfere

with it.  The court therefore did not err in granting summary

judgment to AGC and Seuffert on this claim.

                    3.   Conversion, trespass, and wrongful

               withholding

          "The tort of conversion is `an intentional exercise of

dominion and control over a chattel which so seriously interferes

with the right of another to control it that the actor may justly

be required to pay the other the full value of the chattel.' "22

To establish a conversion claim, a plaintiff must prove that it

had a possessory interest in the property, that the defendants

intentionally interfered with the plaintiff's possession, and

that the defendants' acts were the legal cause of the plaintiff's

loss of property.23  Trespass to chattels is essentially

conversion but to a lesser degree.24

          K&K's allegations are basically that Seuffert and AGC

obstructed K&K's removal of the dredge and that Seuffert refused

to turn over all of the dredge equipment and facilities.  These

claims concern contractual breaches and disputes and thus "sound

in contract, rather than tort."25  We have held that "[p]romises

set forth in a contract must be enforced by an action on that

contract."26  If K&K's claims could stand, then any contract case

involving the transfer of goods or realty would also contain a

trespass, conversion, or wrongful withholding claim.  But every

contract breach cannot be turned into a tort.27  Furthermore, the

consequential damages that would flow from K&K's tort claims and

from K&K's contract claims significantly overlap.  We therefore

affirm the court's grant of summary judgment to AGC and Seuffert

on these tort claims.

                    4.   Punitive damages

          Because the gravamen of K&K's allegations is in

contract, and because none of K&K's tort claims can stand, the

superior court did not err in dismissing K&K's punitive damages

claim.28

          D.   The Superior Court Did Not Err in Giving Its Jury

          Instructions.

          K&K argues that jury instruction Nos. 34, 35, and 36
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                are erroneous. Instruction No. 34 deals with methods of
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                calculating damages.29 Instruction No. 35 concerns K&K's duty to
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                mitigate damages.  Instruction No. 36 addresses speculative
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                damages.  We review jury instructions de novo and will only
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                consider them grounds for reversal if they were objected to and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                caused prejudice.30  If not objected to, we will review jury
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                instructions "only for plain error - that is, for obvious error
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                creating a high likelihood of injustice."31  "As long as the jury
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                is properly instructed on the law, . . . the trial court has
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                broad discretion to determine whether to give instructions
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                specially tailored to the case at hand."32
          K&K claims that it did not use the total cost method to

calculate damages and that Instruction No. 34 is thus an

incorrect statement of the law under this case, misled the jury,

and prejudiced K&K.33  Prior to the drafting of this instruction,

K&K argued to the superior court that it did not believe that the

total cost method of calculating damages was involved in this

case but indicated that the court might have to give an

instruction including both actual and total cost instructions,

which is what the court did.  After it was drafted, the only

discussions on the instruction were as follows:

          THE COURT:     [W]e've talked about [this
                         instruction] several times,
                         and it sets forth the total
                         [and] actual - finds both to
                         be a jury question, sets forth
                         the four elements.
                         
          MR. SHEEHAN:   I think you've got a
                         grammatical mistake on the
                         second paragraph, third line.
                         I think that should read
                         "allowed to recover only if
                         K&K."
                         
          THE COURT:     Right.  You mean the "for
                         that" should be deleted.
                         
          MR. SHEEHAN:   Yeah.
                         
          THE COURT:     I think so.  Got me convinced.
                         Anybody else?  Anything else
                         on that one anyone sees?
                         
                              MR. LEWIS:     Okay.
                         
                              THE COURT:     Okay?
                         
The court then turned to the next instruction.  Although K&K

asserted at oral argument that it did object to Instruction No.

34, our review of the transcript reveals that K&K did not object

to this instruction after it was drafted, apart from asking for a

small grammatical correction.  We conclude that K&K's failure to

adequately object constitutes a waiver of its complaints about

the instruction.34  Furthermore, as explained below, the

instruction is also a correct statement of the law.35  As there

was no error or prejudice in giving Instruction No. 34, there are

no grounds for reversal.

          K&K argues that Instruction No. 35 is incorrect because

there was no evidence that K&K failed to mitigate and because the

evidence was that K&K did mitigate by moving the dredge despite

the obstacles created by Seuffert and AGC.36  The superior court

specifically found that there was some evidence of failure to

mitigate and allowed the instruction to go to the jury.  Because

the court's finding is not clearly erroneous, the instruction is

a correct statement of the law, and there was no clear prejudice

from giving the instruction, we conclude that Instruction No. 35

provides no grounds for reversal.

          K&K argues that the last paragraph of Instruction No.

36 concerning speculative damages is misleading, and when read

with Instruction No. 34 requires an unreasonable burden of proof.37

K&K maintains that much of its damages are based on two

promissory notes and that K&K was precluded on cross-examination

from clarifying the contingency of these notes on the grounds of

relevance.  K&K contends that it should have been allowed to

explain that the reason the dredge was not operating was because

of this litigation and because K&K needed the parts, equipment,

and facilities in the Old Town to activate the dredge.  K&K

alleges that based on the wording of Instruction No. 36, the jury

concluded that payment of these notes was "not reasonably

certain" and that they were not "actual costs" as discussed in

Instruction No. 34.

          K&K's disagreement is not really with the wording of

Instruction No. 36, but rather with the superior court's

evidentiary ruling.  However, K&K has not raised as a claim of

error its evidentiary argument that it should have been allowed

to explain the promissory notes' contingency on cross-

examination.  Furthermore, it is unclear how the giving of this

instruction, as distinguished from the court's evidentiary

ruling, actually prejudiced K&K.  Accordingly, we conclude that

Instruction No. 36 also does not constitute grounds for reversal.

          E.   AGC's Cross-Appeal Concerning Assignment,
          Novation, and Attorney's Fees Is Without Merit.
          
          AGC's cross-appeal contends that the superior court

should have dismissed all claims against it because the

assignment to Seuffert was proper and because the agreement

between Seuffert and K&K was a novation.  AGC thus challenges the

court's denials of its summary judgment motions on the claim that

the assignment to Seuffert constituted a breach and the claim

that AGC was liable for Seuffert's alleged misconduct.  K&K

challenges the court's denial of its summary judgment motions on

these issues as well.38  In addition, AGC argues that it was the

prevailing party in the case and should have been awarded

attorney's fees.  We affirm all of the superior court's rulings

on these matters.

                    1.   The court did not err in denying AGC
               summary judgment on whether the assignment was a
               breach of contract.
               
          The statutory provision in dispute between AGC and K&K

concerning assignment is AS 45.02.210(b), which states that a

contract for sale of goods cannot be assigned if "the assignment

would materially change the duty of the other party, increase

materially the burden or risk imposed on the other party by the

contract, or impair materially the chance of obtaining return

performance."39  AGC contends that the assignment did not

materially change anything, since AGC's only duties were to

provide a bill of sale when K&K tendered performance and to

provide reasonable access so the dredge could be moved, while the

only difference for K&K was that it had to tender to Seuffert

instead of to AGC.

          The evidence certainly supported K&K's contention that

the test of AS 45.02.210(b) was met.  AGC was aware that Seuffert

had a substantially different motive than AGC with respect to the

dredge, since Seuffert considered it an asset to be kept for use

as a tourist attraction instead of a liability to be eliminated.

AGC thus knew that Seuffert had every incentive to burden K&K's

performance, which Seuffert did by increasing K&K's costs,

delays, and risks.  The jury therefore justifiably concluded that

AGC's assignment to Seuffert was a breach of contract.40  The

superior court did not err in denying AGC summary judgment on

this question.

                    2.   There was no novation.

          Generally, an assignor remains liable on an assigned

contract.41 AGC argues, however, that it should not be held

liable, and that the court erred in failing to grant its summary

judgment motion arguing as much, because the agreement between

Seuffert and K&K constituted a novation.  We disagree.

          "A novation is a substituted contract that includes as

a party one who was neither the obligor nor the obligee of the

original duty."42  As with accord and satisfaction, any breach of

a novation provides no right of action on the old duty.43  A

novation must have "all of the essential elements of an original

contract and also an intention that the agreement operate as an

immediate discharge of the first contract."44

          AGC locates the novation not only in the "pipe yard"

agreement, but also in K&K and Seuffert's correspondence in

August and September 1998 making changes to contract terms such

as the performance bond requirement, the obligation to provide a

bill of sale within ten days of tender, and the date by which K&K

was to remove the dredge equipment and facilities.  AGC contends

that these were negotiations for substitute performance and that

Seuffert and K&K's agreement discharged AGC.

          AGC's novation argument fails for the same reason

Seuffert's accord and satisfaction argument fails - there was no

evidence of intent to supersede the original contract.  K&K

started dealing with Seuffert only after it received AGC's

unequivocal rejection of its tender.  K&K characterizes its

contacts and compromises with Seuffert as its efforts to mitigate

the harm caused by AGC's breach.  K&K repeatedly conditioned its

dealings with Seuffert and AGC by reserving all its rights.45

          K&K's actions are consistent with its explanation of

doing what it was forced to do once AGC refused to be involved.

K&K was merely modifying the contract terms as exigencies

dictated.  If AGC's argument could stand, then every time a party

wrongfully assigned a contract and the other party consequently

negotiated with the assignee in an attempt to avoid a total loss,

the breaching assignor would be released from liability.  Every

attempt to mitigate would become a novation.  Such a rule is

clearly untenable and undesirable.

                    3.   The superior court did not abuse its
               discretion in awarding attorney's fees to K&K
               instead of to AGC.
               
          AGC contends that the court abused its discretion in

awarding attorney's fees to K&K as the prevailing party, instead

of to AGC.  We have "consistently held that both the

determination of `prevailing party' status and the award of costs

and fees are committed to the broad discretion of the trial

court."46  We will only interfere with the court's decision if "it

is shown that the court abused its discretion by issuing a

decision which is arbitrary, capricious, manifestly unreasonable,

or which stems from an improper motive."47

          We have held that the prevailing party " `is the one

who successfully prosecutes the action or successfully defends

against it, prevailing on the main issue, even though not to the

extent of the original contention.  [The prevailing party] is the

one in whose favor the decision or verdict is rendered and the

judgment entered.' "48  The "main issue" between K&K and AGC was

the assignment of the contract and AGC's joint liability.

Because K&K won on those issues, awarding K&K attorney's fees was

well within the superior court's broad discretion.  We thus

affirm the court's award of fees to K&K.

          F.   Seuffert's Cross-Appeal Regarding Damage
          Calculation, Government Agencies, and Prejudgment
          Interest Is Without Merit.
          
          Seuffert's cross-appeal challenges the trial court's

denial of his motion for a directed verdict on K&K's method of

proving delay damages, its denial of his motion for summary

judgment on K&K's claim of breach of the implied covenant of good

faith and fair dealing by contacting government agencies, and the

applicability to the camp location and berm claims of the court's

order that prejudgment interest shall run on all claims from

August 7, 1998.  We affirm all of the superior court's rulings on

these matters.

                    1.   The superior court did not err in
               denying Seuffert's motion for a directed verdict
               on K&K's method of proving damages.
               
          The trial court denied Seuffert's motion for a directed

verdict on the issue of whether K&K used the disapproved total

cost method without meeting the prerequisites for its use.  When

reviewing the denial of a motion for a directed verdict, we must

"determine whether the evidence, when viewed in the light most

favorable to the non_moving party, is such that reasonable

persons could not differ in their judgment as to the facts."49  "

`If there is room for diversity of opinion among reasonable

people, the question is one for the jury.' "50

          The parties dispute whether K&K used the total cost

method, which "calculates damages by determining the difference

between the actual costs incurred on a project, plus a reasonable

amount for profit, and the contract price."51  We have determined

that calculating damages by estimating how long a project should

have taken to complete, comparing this to the actual time needed,

and multiplying the difference by the cost of labor, equipment,

and overhead per unit of time constitutes a modified total cost

approach.52  The essence of the method is a comparison between a

party's initial estimates and the actual cost or time of

performing the contract.53  The total cost method is disfavored

"because it assumes that the defendant's breach was the cause of

all of the extra cost, it assumes plaintiff's bid [or estimate]

was accurately computed, and it assumes that plaintiff was not

responsible for increases in cost."54

          The preferred method of calculating damages is the

actual cost method,  in which each element of extra expense

incurred because of the alleged breach is added up for a total

claimed amount.55  Courts have also allowed a jury verdict method

of calculating damages, a variant on actual cost, that "allows

the contractor to `present evidence of the cost of additional

work to the finder of fact, including any actual cost data,

accounting records, estimates by law and expert witnesses, and

calculations from similar projects.' "56  The jury verdict method

basically reflects the principle that "a contractor need not

prove damages with mathematical precision, but may only recover

those damages which it proves with reasonable certainty."57

          Seuffert contends that K&K relied exclusively on the

total cost method.  He claims that K&K's accountant arrived at

K&K's damages figures as follows:  (1) he identified nineteen

line items or cost areas incurred by K&K during the whole

project, such as payroll, equipment use fees, and fuel; (2) he

figured K&K's total expenses for each line item from information

provided by K&K; (3) after minor adjustments, he totaled the

nineteen line items to arrive at a total cost for the project of

$560,837; (4) he allocated each line item into either a ten-day

or twenty-day category, with the former being the project

duration estimate and the latter being the assumed delay; and (5)

he concluded that $213,840 should be allocated to the ten-day

category and $346,997 to the twenty-day.  Seuffert says this

amounts to an arbitrary allocation of one-third of the total

project costs to the ten-day category and two-thirds to the

twenty-day category.  Seuffert claims that K&K's accountant

"arbitrarily" allocated one-third of the costs for payroll, cell

phone, consulting, equipment use, fuel and oil, meals, and office

expense to the ten-day estimate and two-thirds to the twenty-day

delay.  Seuffert maintains that K&K thus used the total cost

method, just substituting time for costs and relying on an

estimated time instead of an original bid.

          K&K counters that it gave evidence of its actual costs.

Karl testified as to how much time K&K spent excavating a pit,

the added equipment needed, the equipment damaged, and the delays

incurred - which allegedly would have been unnecessary if

Seuffert's camp was not blocking the easiest route for moving the

dredge.  Karl testified that Seuffert's contact with government

agencies delayed the start of the project by thirty days.  He

testified as to how many days it did take and should have taken

to get the dredge out of the pit and on level ground; how many

days it took to move the dredge from the pit to its final

destination, how many of those days were because of Seuffert's on-

site demands and how many were due to the freezing temperatures

that K&K would not have had to face if Seuffert had not delayed

the start of the project; and how many days it took to build a

new ramp up to the highway in order to avoid the parking lot

across which Ingrid Seuffert objected to moving the dredge.  Karl

testified about the extra labor, equipment costs, and delays

incurred because of Seuffert's alleged interference.  K&K thus

maintains that it specifically identified the added equipment it

needed and the hourly rates for their use, as well as its daily

costs to maintain a crew and equipment in Chicken.  K&K claims

that back-up invoices and time records for the labor costs were

in the courtroom and available.  K&K thus concludes that its

claim was based on its actual additional costs, identified and

itemized, not on "total cost."

          K&K's method resembles a modified total cost approach.58

On the other hand, K&K offered summaries, exhibits, and testimony

concerning delays and costs, and it offered testimony about

Seuffert's actions and their ramifications.  Thus, K&K's damages

claim "cannot be dismissed as a mere total cost case."59  The

court's denial of Seuffert's motion for a directed verdict was

therefore proper, and Jury Instruction No. 34, discussed above,

provided accurate information on both the actual and total cost

methods.  That instruction listed the four-part total cost

prerequisite test we identified in Anchorage v. Frank Coluccio

Construction Co.60  The jury could thus determine what method it

thought K&K used and assess damages accordingly.  Jury

Instruction No. 34 took care of Seuffert's concern.

                    2.   The superior court did not err in
               denying all parties summary judgment on K&K's
               claims that Seuffert's contacts with government
               agencies constituted a breach of contract.
               
          K&K alleges that the superior court erred in denying

K&K's motion for summary judgment on its claim that Seuffert's

contact with the Army Corps of Engineers and with the Department

of Natural Resources constituted a breach of the implied covenant

of good faith and fair dealing.61  In his cross-appeal, Seuffert

argues that he was entitled under the Noerr-Pennington doctrine

to petition government agencies without fear of liability for

breach of contract.

          The Noerr-Pennington doctrine evolved out of two United

States Supreme Court cases in which the Court held that those who

attempt to influence legislative and executive officials are

immune from antitrust liability.62  The Court later extended the

doctrine to include attempts to influence adjudicatory

proceedings before the courts and administrative agencies.63

Seuffert argues that the doctrine should be extended to protect a

party from liability for contacting agencies to ensure that a

contractor performing work on his land does so lawfully.

Although we note that Seuffert was not attempting to influence

any proceeding or process, we decline to decide if Noerr-

Pennington should be extended to cover this case.64

          Seuffert was not entitled to summary judgment because

genuine issues of material fact existed concerning the

reasonableness of and motives behind his contacts with government

agencies.  Seuffert claims that he had genuine concerns about his

own liability and was not trying to block K&K's dredge removal

through agency involvement.  K&K claims that Seuffert intended to

interfere with and thwart K&K's dredge removal efforts.  When

viewing Seuffert's contacts through the lens of his entire

history of conduct, it is clear that genuine issues existed to

support the court's denials of summary judgment.

                    3.   The court did not err in its award of

               prejudgment interest.

          The superior court ordered that prejudgment interest on

all claims accrue from August 7, 1998, when K&K sent a letter

that included a threat of litigation. Seuffert's cross-appeal

challenges that date as it applies to the claims relating to

Seuffert's placement of his camp and the dirt berm, arguing that

those claims did not arise until September 12, 1998, when K&K

arrived in Chicken to start moving the dredge, because prior to

that K&K suffered no injury.

          "When prejudgment interest begins to accrue is a

question of law which we review applying our independent

judgment."65  Alaska Statute 09.30.070(b) states that prejudgment

interest accrues from the day process is served on the defendant

or the day the defendant received written notice that an injury

occurred and that a claim might be brought for that injury.  This

statute applies "only to actions for personal injury, death, or

damage to property, and does not apply to claims for purely

economic loss."66  Rather, in contract cases, prejudgment interest

runs from the date the claim accrues, unless that would result in

an injustice.67  We cannot say that the date set by the superior

court was incorrect as a matter of law.

          "A cause of action accrues when the breach occurs,

regardless of the aggrieved party's lack of knowledge of the

breach."68  Given the jury's conclusions, Seuffert's breaching

conduct apparently began well before September 12.  Seuffert

engaged in a continuous course of conduct to impede K&K's

performance of the contract starting at least in the summer of

1998, when he relocated his camp and blocked the access road with

a berm.  These actions constituted a breach of the covenant of

good faith and fair dealing, even if K&K had not yet incurred

damages from that breach.  A contract cause of action usually

accrues at "the time of the breach of the agreement, rather than

the time that actual damages are sustained as a consequence of

the breach."69  The superior court need not have recalculated

interest from the date of each impediment Seuffert placed before

K&K.70  As a continuing course of conduct, the court could have

accrued interest from as early as June 1998.  However, Seuffert

only challenges the date as being too early, not too late.

Accordingly, we affirm the superior court's selection of the date

from which to accrue prejudgment interest as August 7, 1998.

IV.  CONCLUSION          We REVERSE the superior court's grant of

summary judgment to Seuffert on the issue of the equipment and

facilities in the Old Town and REMAND for further proceedings.

We AFFIRM all the other challenged rulings.

_______________________________
1Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000).
2Nichols  v. State Farm Fire & Cas. Co., 6 P.3d 300, 303  (Alaska
2000).
3Am. Computer Inst. v. State, 995 P.2d 647, 651 (Alaska 2000).
4Sykes  v. Melba Creek Mining, Inc., 952 P.2d 1164, 1167  (Alaska
1998); Young v. Hobbs, 916 P.2d 485, 487-88 (Alaska 1996).
5Neal  &  Co. v. Ass'n of Village Council Presidents Reg'l  Hous.
Auth., 895 P.2d 497, 502 (Alaska 1995).
6Id. at 505.
7Air  Van Lines, Inc. v. Buster, 673 P.2d 774, 777 (Alaska  1983)
(citation  omitted); see also Restatement (Second)  of  Contracts
281(1) (1981).
8Nat'l  Bank  of  Alaska v. Warfle, 835 P.2d 1167,  1170  (Alaska
1992).
9Id.
10Id. at 1170 n.6.
11See id. at 1170; Alaska Creamery Prod., Inc. v. Wells, 373 P.2d
505, 509-11 (Alaska 1962).
12Seuffert argues that if K&K did not manifest an intent to create
an  accord, K&K instead made a unilateral mistake as to  a  basic
assumption  on which their agreement was made, that Seuffert  was
not  responsible  for K&K's ignorance of the  Old  Town  and  its
contents,  and  that the contract allocated the risk  of  such  a
mistake  to  K&K. See Dickerson v. Williams, 956  P.2d  458,  466
(Alaska  1998).  Seuffert's argument fails, however, because  the
contract makes no allocation of risk for dredge parts located  on
other claims and because Seuffert's blocking of the trail to  the
Old  Town  with  a cable, a gate, and a sign warning  trespassers
that  they  will  be "executed" makes him responsible  for  K&K's
failure to inspect that area.
13Because  we  are reversing on this issue, we need  not  address
K&K's challenges to the superior court's denial of its Rule 56(f)
motion  for  additional discovery and its Rule 77(k)  motion  for
reconsideration.
14Restatement (Second) of Contracts  250 cmt. b (1981); see  also
Drake v. Wickwire, 795 P.2d 195, 198 (Alaska 1990).
15Restatement (Second) of Contracts  250 cmt. b (1981).
1617A Am. Jur. 2d. Contracts  738, at 752 (1991).
17K&K  also  challenges the court's refusal to grant  it  summary
judgment  on the question of whether AGC was liable in  tort  for
negligent assignment.  K&K agreed just before trial, however,  to
dismiss  this  claim without prejudice.  As such, we  decline  to
address it.
18Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000).
19Id.
20See CSY Liquidating Corp. v. Harris Trust & Sav. Bank, 162 F.3d
929,   932-33   (7th  Cir.  1998)  ("[T]he  tort  of  intentional
interference  with  contract  is meant  to  protect  the  parties
(including  third_party  beneficiaries,  assignees,  and   others
having  the rights of parties) to contracts, rather than  persons
who  might  be  harmed by a breach of someone else's  contract.")
(citations  omitted); Easton Nissan, Inc. v.  Ford  Motor  Credit
Co., 755 F. Supp. 671, 674-75 (D. Md. 1991) (holding that tort of
intentional  interference  with  contractual  rights  cannot  lie
against   assignee   because  "subsequent  to   the   assignment,
[assignee] was a party to the contracts"); Douglas Theater  Corp.
v.  Chicago  Title & Trust Co., 681 N.E.2d 564,  568  (Ill.  App.
1997)  ("[T]he assignee of a contract should not be subjected  to
tort  liability for a subsequent breach of the assigned contract.
.  .  .   [T]he law governing tortious interference with contract
claims . . . requires that the tortfeasor be a third party to the
contractual relationship.").
21Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 132 (Alaska 2000).
22Carver v. Quality Inspection & Testing, Inc., 946 P.2d 450, 456
(Alaska  1997)  (quoting  Dressel v. Weeks,  779  P.2d  324,  328
(Alaska 1989)).
23Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000).
24Mitchell  v.  Heinrichs, 27 P.3d 309, 311  n.1  (Alaska  2001).
Trespass  to chattels can be committed when a party intentionally
dispossesses  another  of the chattel or  intentionally  uses  or
interferes  with a chattel in another's possession.   Restatement
(Second) of Torts  217 (1965).
25Kalenka v. Taylor, 896 P.2d 222, 228 (Alaska 1995).
26Alaska Pacific Assur. Co. v. Collins, 794 P.2d 936, 946 (Alaska
1990).
27Id. ("Only where the duty breached is one imposed by law,  such
as  a traditional tort law duty furthering social policy, may  an
action between contracting parties sound in tort.").
28See  Walt  v. State, 751 P.2d 1345, 1354 (Alaska 1988)  ("Since
[plaintiff] asserts no recognizable tort claims, his request  for
punitive damages cannot withstand summary judgment.").
29The  total  and actual cost methods of calculating damages  are
discussed below in the section on Seuffert's cross-appeal.
30State v. Johnson, 2 P.3d 56, 59 (Alaska 2000); Conam Alaska  v.
Bell Lavalin, Inc., 842 P.2d 148, 152-53 (Alaska 1992); Alaska R.
Civ. P. 51(a).
31Power  Constructors, Inc. v. Taylor & Hintze, 960 P.2d  20,  29
(Alaska 1998).
32Id.
33Instruction No. 34 states:

                    Damages are to be presented by  the
                    best measure that can be used under
                    the  circumstances.  In this  case,
                    damages  are  to be  calculated  by
                    showing   each  element  of   extra
                    expense included.  You must  decide
                    if  K&K Recycling has done so.   If
                    it has, you may compute damages for
                    each extra expense shown.
                    
                As  to expenses for which K&K Recycling
          has  presented  damages evidence  only  as  a
          portion  of  total damages, K&K Recycling  is
          allowed  to  recover only  if  K&K  Recycling
          proves all four of the following:
          
          1.   The  nature of the extra moving expenses
               made    it    impossible    or    highly
               impracticable to determine them  with  a
               reasonable degree of accuracy;
               
          2.   K&K Recycling's estimate of its expenses
               for   the   move  of  the   dredge   was
               realistic;
               
                    3.   its actual costs were reasonable; and
               
          4.   it  was  not responsible for  the  added
               expenses.
               
                If you find that is [sic] has shown all
          four  of these to be more true than not true,
          you  may  calculate and award  a  portion  of
          total damages accordingly.
          
                If  it has not proven damages by either
          of these methods (extra expenses or a portion
          of   total  expense),  you  must  award   K&K
          Recycling one dollar ($1.00) in damages.
          
34Sever v. Alaska Pulp Corp., 931 P.2d 354, 362 (Alaska 1996); see
also Conam Alaska, 842 P.2d at 153 (noting "the policy underlying
Rule  51(a)  that counsel should make a specific objection  to  a
given  instruction, even if he has previously argued his position
to  the  court. The trial court needs an identifiable opportunity
to rule on a party's position." (quotation omitted)).
35K&K  admits  that this instruction is "consistent  with  Alaska
law."
36Instruction No. 35 states:

                In  this case, Mr. Seuffert and  Alaska
          Gold  Company  claim  that,  with  reasonable
          efforts  and  without  undue  risk,  expense,
          hardship   or  embarrassment,  K&K  Recycling
          could  have avoided some or all of the losses
          claimed   even   if  the  losses   originally
          resulted  from  defendants' failure  to  keep
          their promise or their breach of the duty  of
          good faith and fair dealing.
          
                If  you  decide that it is more  likely
          true  than not true that K&K Recycling  could
          have  avoided some losses in whole or in part
          with  reasonable  efforts and  without  undue
          risk, expense, hardship or embarrassment, you
          may  not  require Mr. Seuffert and/or  Alaska
          Gold  Company  to  pay the  amount  that  K&K
          Recycling  reasonably could have avoided  and
          you  must  subtract any such amount from  the
          amount of damages you have found.
          
                However,  if you find that it  is  more
          likely  true than not true that K&K Recycling
          incurred costs in making a reasonable  effort
          to  avoid such losses, you must make an award
          to K&K Recycling for such costs.
          
37Instruction No. 36 states:

                If  you find in favor of Plaintiff  K&K
          Recycling,  but you find that  K&K  Recycling
          did   not   sustain  any  monetary  loss   as
          determined  under  the previous  instructions
          that   I   have  given  you,  or   that   K&K
          Recycling's  loss cannot be  determined  with
          reasonable certainty, then you must award K&K
          Recycling the amount of $1.00.
          
                 You   are  not  permitted  to  include
          speculative damages, which means compensation
          for loss or harm that, although possible,  is
          conjectural or not reasonably certain.
          
38K&K  also  challenges Judge Steinkruger's order granting  AGC's
October  1999  motion  to  dismiss, a  motion  that  argued  both
novation  and free assignability of the contract.  If in granting
AGC's motion the court accepted AGC's novation argument, then AGC
could  not  later have been found jointly liable  for  Seuffert's
actions.  Since AGC was in fact later found to be jointly liable,
it appears that Judge Funk drew AGC back into the case.  As such,
and as AGC maintains, Judge Steinkruger's dismissal of all claims
against  AGC  had  no  effect  on the  ultimate  outcome.   K&K's
challenge  to  the court's grant of AGC's motion to dismiss  thus
also appears to be moot.
39AS 45.02.210(b) states:

                Unless otherwise agreed, all rights  of
          either seller or buyer can be assigned except
          where  the assignment would materially change
          the   duty   of  the  other  party,  increase
          materially the burden or risk imposed on  the
          other   party  by  the  contract,  or  impair
          materially  the  chance of  obtaining  return
          performance.  A right to damages  for  breach
          of  the whole contract or a right arising out
          of  the  assignor's  due performance  of  the
          entire  obligation  can be  assigned  despite
          agreement otherwise.
          
40K&K  also  argues that AGC's rejection of its August  7  tender
constituted  a  repudiation of the contract and  thus  a  breach.
This  is  merely a variant of K&K's argument that the  assignment
was  a  breach.   If  the  assignment  was  valid,  for  example,
rejecting  the  tender  would not be a  repudiation  because  K&K
should have tendered to Seuffert.  K&K essentially admits in  its
brief the derivative nature of its tender claim: "AGC's rejection
of  K&K's tender constitutes a breach of contract as a matter  of
law,  because the assignment to Seuffert materially  changed  the
K&K/AGC  agreement  and  therefore  constituted  a  repudiation."
Because  they  are  at root the same claim, we address  only  the
assignment argument.
41Foster   v.  Cross,  650  P.2d  406,  410  (Alaska  1982);   AS
45.02.210(a).
42Oaksmith v. Brusich, 774 P.2d 191, 196 n.5 (Alaska 1989) (citing
Restatement (Second) of Contracts  280 (1981)).
43Id.
44Alaska  Creamery  Prod., Inc. v. Wells, 373  P.2d  505,  509-10
(Alaska 1962).
45Cf.  Restatement (Second) of Contracts  329(2) (1981) ("If  the
obligor,  with knowledge of such a repudiation [by the assignor],
accepts  any performance from the assignee without reserving  his
rights against the assignor, a novation arises by which the  duty
of  the assignor is discharged and a similar duty of the assignee
is substituted.").
46Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979).
47Id.
48Id. at 876 (quoting Buza v. Columbia Lumber Co., 395 P.2d  511,
514 (Alaska 1964)).
49Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 635 (Alaska 1996).
50Sherbahn  v. Kerkove, 987 P.2d 195, 198 (Alaska 1999)  (quoting
Petersen  v.  Mutual  Life Ins. Co., 803 P.2d  406,  410  (Alaska
1990)) (alteration omitted).
51Geolar, Inc. v. Gilbert/Commonwealth, 874 P.2d 937, 943 (Alaska
1994).
52Id. at 943-44.
53Id. at 944.
54Power  Constructors, Inc. v. Taylor & Hintze, 960 P.2d  20,  41
(Alaska 1998) (quotation omitted).
55Anchorage  v.  Frank Coluccio Constr. Co., 826  P.2d  316,  325
(Alaska 1992).
56Id.  (quoting New Pueblo Constructors, Inc. v. State, 696  P.2d
185, 194 (Ariz. 1985)) (alteration omitted).
57Id. at 325 n.12 (quotation and alteration omitted).
58See Geolar, 874 P.2d at 944.
59Power Constructors, 960 P.2d at 43.
60826 P.2d 316, 325 (Alaska 1992) (holding that acceptability  of
total  cost method "hinges on proof that: (1) the nature  of  the
particular  losses make it impossible or highly impracticable  to
determine  them  with a reasonable degree of  accuracy;  (2)  the
plaintiff's  bid or estimate was realistic; (3) its actual  costs
were  reasonable; and (4) it was not responsible  for  the  added
expenses") (quotation omitted).
61Because the jury justifiably ruled for K&K on these issues, its
argument  that  the  trial  court erred  in  denying  it  summary
judgment is moot.  Fairbanks N. Star Borough v. Lakeview Enters.,
897 P.2d 47, 59 n.21 (Alaska 1995).
62E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S.  127, 136-38 (1961); United Mine Workers v. Pennington,  381
U.S.  657, 669-70 (1965); see also Gunderson v. Univ. of  Alaska,
Fairbanks, 902 P.2d 323, 326 (Alaska 1995) (explaining  evolution
of Noerr-Pennington doctrine).
63Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972).
64The  applicability of a legal doctrine is a question of law  to
which we apply our independent judgment, adopting the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and
policy.   Robles v. Shoreside Petroleum, Inc., 29 P.3d  838,  841
(Alaska 2001).
65Beaux v. Jacob, 30 P.3d 90, 100 (Alaska 2001).
66Id.
67Rice v. Denley, 944 P.2d 497, 501 (Alaska 1997).
68AS 45.02.725(b).
69Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486,  490-91
(Alaska  1975);  see also Morris v. Morris,  724  P.2d  527,  529
(Alaska  1986)  ("In  contract  actions,  rights  to  prejudgment
interest generally arise on the date of breach.  In tort actions,
they arise on the date of injury.").
70This  case  is unlike those involving maintenance contracts  or
other  contracts  that require a series of separate  performances
over  time,  for which separate claims accrue as each payment  or
performance  becomes due.  See, e.g., H.J. Tucker & Assoc.,  Inc.
v.  Allied  Chucker & Eng'g Co., 595 N.W.2d 176, 183 (Mich.  App.
1999); C_B Realty & Trading Corp. v. Chicago & N. W. Ry. Co., 682
N.E.2d  1136,  1140  (Ill. App. 1997); 9  Arthur  Linton  Corbin,
Corbin on Contracts  956 (interim ed. 2002).