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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fletcher v. Trademark Construction, Inc. (12/05/2003) sp-5760

Fletcher v. Trademark Construction, Inc. (12/05/2003) sp-5760

     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,


DAVID FLETCHER, d/b/a              )
ALASKA ELECTRIC COMPANY,           )    Supreme Court No. S-10609
                                   )    Superior Court No.
                              )    3AN-00-10875 CI
     v.                       )
                                   O P I N I O N
INC., an Alaska corporation, and   )    [No. 5760 - December 5,
COMPANY, a Pennsylvania            )
corporation,                                      )
                                      Appellees.            )

          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Joe P. Josephson, Josephson &
          Associates, P.C., Anchorage, for Appellant.
          William K. Renno and Christine V. Williams,
          Oles Morrison Rinker & Baker LLP, Anchorage,
          for Appellees.

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


          Alaska Electric Company appeals the superior court's

dismissal of its contract action against Trademark Construction,

contending that the court made insufficient findings of fact and

conclusions of law when it dismissed the case under Alaska Rule

of Civil Procedure 41(b) for failure to prove damages with

sufficient certainty.  Alaska Electric also contends that the

trial court made various errors in its application of Civil Rule

41(b).  Because the superior court's findings of fact are

sufficient to indicate the legal and factual bases for its

ruling, and because its interpretation of Civil Rule 41(b) was

proper, we affirm.


A.             Facts

          Appellee Trademark Construction entered into a contract

with the State of Alaska to renovate the seventh and eighth

floors of the Bank of America Center in Anchorage in December

1998.  Trademark's successful bid included a subcontract bid of

$74,724 for electrical work by appellant Alaska Electric.  The

general contract called for the work to be completed by January

31, 1999.  The subcontract specified that time was of the

essence, and that if changes or additional work were ordered by

the state, Alaska Electric would have to obtain a written order

from Trademark specifying and approving the work.  The

subcontract also governed how costs would be proved if the

contract was changed:

          6.1.2  In the event that [Trademark], or [the
          State of Alaska] shall order changes in
          Subcontract work, or order additional work,
          the Subcontractor shall furnish a price
          breakdown with his proposal in connection
          with the change order, itemized as required
          by [Trademark], or the [State of Alaska].
          Unless otherwise directed, the breakdown
          shall be in sufficient detail to permit an
          analysis of all material, labor, equipment,
          and overhead costs as well as profit, and
          shall cover all work involved to accomplish
          the change, whether deleted, added, or
Based on its certified payroll records, it appears that Trademark

worked on the project from approximately December 28, 1998 to

March 6, 1999.  Various changes were made to the project, and the

parties initially sought to authorize every change.

          On December 22, 1998 the state issued drawings and a

list of changes known as "Revision No. 2," which made various

changes, additions, and deletions to the original project.  The

parties submitted to the state an initial proposal of $40,824 to

cover the extra electrical subcontract work on January 8, 1999;

in a January 25 meeting between the parties and the state, this

was reduced verbally to $24,096 because the state decided that

the initial proposal had included work not required by Revision

No. 2.  The state requested further substantiation of the details

of the reduced proposal at that time, but none was provided.  In

a January 28, 1999 document apparently drafted by Alaska

Electric, Trademark promised to compensate Alaska Electric for

additional work including "[a]ll revisions of #2 dated December

22, 1998, [a]ll extras associated with liebert units, . . . i.e.,

additional work that was not clearly defined on the original

prints . . . plus all additionally incurred administrative

services."  In this document Trademark agreed "to pay Alaska

Electric for all time and materials expended in completing this

work, plus profit."  On March 30, 1999 Alaska Electric sent an

invoice to Trademark totaling $92,835 for labor alone on the

additional parts of the contract.  Trademark demurred, and

attorneys for the parties worked for some time to try to resolve

the dispute.  By March of 2001 Alaska Electric's final invoice

for labor and materials reached $154,475; with profit and

interest, its final bill totaled $230,476.

B.             Proceedings

          Alaska Electric filed suit against Trademark in

September 2000, alleging that Trademark owed at least $200,000 on

the unpaid "extra" and revised parts of the contract, and also

alleging business damage, a claim that was later dismissed.  A

bench trial commenced before Superior Court Judge Peter A.

Michalski in early December 2001, and plaintiff Alaska Electric

called two witnesses: David Fletcher, the head of the business

and negotiator of the above contracts, and Terrance Hix, a

volunteer data manager at the Alaska Electric office.

                    1.   Evidence at trial

          Fletcher and Hix testified extensively about the

project and its expenses and explained numerous documents

relating to their labor and materials costs.  Three exhibits and

one handwritten chart were especially important at trial.  The

first was plaintiff's Exhibit 10.  This was the certified payroll

for the entire project submitted by Alaska Electric to the Alaska

Department of Labor, which Hix created from time cards filled out

by foremen at the job site.  The certified payroll documented

regular and overtime hours worked, hourly pay rates, and the type

of benefits set by the union, although not the union benefits

themselves.  The certified payroll did not distinguish between

hours worked on the contents of the original contract and hours

worked to fulfill "extra" or "Revision No. 2" requirements.

          The second important exhibit was plaintiff's Exhibit

59.  This was a spreadsheet that purported to differentiate

between hours worked on the original contract and hours worked on

the additional and Revision No. 2 requirements.  Hix prepared

this spreadsheet during the completion of the project partly from

time cards completed by foremen at the job site and partly on the

basis of when the work was completed.  "Work order numbers" on

the spreadsheet reflected different job codes assigned by

Fletcher and Hix to the two sets of contracts.  The final row of

the spreadsheet totaled the total regular and overtime hours

worked on the two aspects of the project.  On cross-examination,

the witnesses testified that the foremen who filled out the time

cards had not always been provided with the project codes that

differentiated between work on the original contract and work on

the revisions, and that not all of the time cards contained those

differentiated codes.  There was also testimony that this exhibit

listed more work hours for certain workers in certain weeks than

could be substantiated from the time cards.

          The third important exhibit was plaintiff's Exhibit 43.

This was also a spreadsheet, and it was created by Hix and

Fletcher during February 1999 for the purpose of determining

changes in materials needed as a result of the revisions and

changes to the original contract.  Pricing for the materials was

not included.  Although the spreadsheet included a "manhours"

component for every change, these figures were only Fletcher's

estimates as to how much time each job would take.

          The fourth important document was a chart compiled by

Fletcher in the courtroom during the trial.  Apparently this was

how Alaska Electric sought to tie the additional hours from the

exhibits described above to the amount of damages sought by

Alaska Electric.  Fletcher testified that one week before trial

Hix had provided him with Quickbooks software that showed that

his total labor costs for the contract, including gross wages and

benefits paid to the union, totaled $117,656.  This software had

not been entered into evidence or viewed by Trademark.  In order

to determine how much of the labor costs had been incurred in the

additional and second revision aspects of the contract, Fletcher

interpreted the number of standard hours supposedly worked on the

original contract, 635.5 hours as listed in Exhibit 54, as

representing all of the time actually used to complete the work

from the original bid.  He assigned all 1,311 other hours, even

the overtime originally attributed to completing work on the

original contract, to the additional contract and revision.  From

this he concluded that roughly one-third of his labor costs could

be attributed to the original subcontract and roughly two-thirds

could be attributed to the revision.  Presumably this would mean

that two-thirds of $117,656 represented Alaska Electric's labor

costs for the extra work and revision.  This chart was not

admitted into evidence.

                    2.   Rule 41(b) motion for involuntary


          At the close of the plaintiff's case, Trademark moved

for involuntary dismissal under Alaska Rule of Civil Procedure

41(b).1  Trademark alleged that the contract was a "design-build"

contract in which Alaska Electric bore the risk of cost overruns,

that Trademark had not authorized the extra work under the

contract, and that Alaska Electric had failed to prove its actual

damages.  However, Trademark did admit that it owed Alaska

Electric approximately $10,000 as a result of several change

orders, and based that number on three prior change orders plus

the state's estimates of the value of the changes in Revision No.


          Judge Michalski granted the motion for involuntary

dismissal on December 12, 2001, ruling that Alaska Electric had

not met its burden of proving by a preponderance of the evidence

that any of its costs could be attributed to the change orders as

opposed to overruns on the original subcontract.  In particular,

he found that the documentary evidence presented did not facially

differentiate between materials purchased for the original

contract and materials purchased as the result of the revisions,

and that after three years the plaintiffs lacked sufficient

recall to explain the difference credibly.  On December 14 Judge

Michalski entered supplemental written findings of fact, in which

he further found that Alaska Electric's failure of record-keeping

at the time of the contract had prejudiced its case.  He found

that the figures in Exhibit 59, which purported to keep track of

which hours worked were for the base contract versus the revised

contract, were arbitrary, and that Fletcher's figures for

materials costs were unsubstantiated.  Judge Michalski also

stated that "[t]he mere fact that the bid included 635 hours and

Alaska Electric Company used 1,946 hours does not lead to the

conclusion that 1,311 hours were due to change orders."  However,

because Trademark had admitted to some monetary obligations to

Alaska Electric, he awarded $10,220 to Alaska Electric.

          Alaska Electric appeals, seeking three types of relief.

First, it asks us to direct the superior court to make more

specific findings of fact and conclusions of law so that it may

file an appeal on the merits.  Second, Alaska Electric asks that

the superior court be instructed to wait to make its findings

under Civil Rule 41(b) until Trademark has presented its case, or

to articulate in writing why it declines to do so.  Third, Alaska

Electric asks us to instruct the superior court that it is

entitled in a Civil Rule 41(b) motion to view the evidence in the

light most favorable to the non-moving party2 and that it shall

make written findings as to whether and why it chooses to do so.

Because the superior court's findings of fact were adequate to

communicate the legal and factual bases for its ruling, and

because the superior court interpreted Civil Rule 41(b)

correctly, we decline on all three counts.


          We use our independent judgment when interpreting a

civil rule.3  We review decisions made under Civil Rule 41(b) for

abuse of discretion.4  We review the trial court's factual

findings under the "clearly erroneous" standard, which is met

only if we reach " `a definite and firm conviction on the entire

record that a mistake has been made, although there may be

evidence to support the finding.' "5


          A.   Judge Michalski's Oral and Written Findings of
          Fact Were Sufficient To Indicate the Legal and Factual
          Bases for His Ruling.
          Alaska Electric's primary complaint is that "the trial

court's oral findings of fact, even as supplemented, are so

general" that it cannot ask this court "to review each exhibit

and all of the plaintiff's testimony in the case-in-chief to

determine whether the court below erred in holding that the

plaintiff's claim for damages was not clear enough to resist the

defendant's Rule 41(b) motion."  Alaska Electric argues that the

trial court disregarded the facts "that Trademark promised to pay

for work under change orders on a time and materials basis" and

that Fletcher "described at length the work performed above and

beyond the original contract."  Alaska Electric also contends

that Judge Michalski should have hired a special master to help

him sort through the documents presented at trial in order to

arrive at properly proven damages.  Trademark responds that under

Merrill v. Merrill6 and Roberts v. Brooks7 findings of fact and

conclusions of law need only be "sufficient in quality and

quantity to facilitate intelligent review on appeal."8  Trademark

argues that the bases of Judge Michalski's ruling are clear and

that no special master was called for because the problem was the

quality and presentation of Alaska Electric's evidence rather

than the trial court's difficulty in understanding it.

          In Merrill we noted that findings of fact and

conclusions of law are required by Civil Rule 52(a)9 in order to

promote precision in the trial judge's thinking, to establish

issues for res judicata and estoppel purposes, and to aid the

appellate court on review.10  In regard to the latter, "it is the

duty of the trial court by sufficiently detailed and explicit

findings `to give the appellate court a clear understanding of

the basis of the trial court's decision, and to enable it to

determine the ground on which the trial court reached its

decision.' "11  When the trial court dismisses a case on the

merits under Rule 41(b), it must make findings of fact under Rule

52(a).12  Oral findings can be sufficient to satisfy the rule.13

          It is difficult to determine whether the superior

court's findings of fact are "sufficient to facilitate

intelligent review on appeal" when the appellant has not briefed

us on its theory of appeal.14  Nonetheless, Alaska Electric

appears to challenge only the court's finding that it showed an

"insufficient nexus" between any given hours worked or materials

purchased and the revisions to the contract.  The factual

findings that led Judge Michalski to this conclusion are clear:

he found that Fletcher was unable to testify as to the cost of

materials relating to the change orders; that the documents

presented did not provide a basis for distinguishing between base

and revised materials costs; that the classification of hours

worked on the project as "base" or "extra" in Exhibit 59 was

arbitrary; and that no evidence supported Alaska Electric's

assumption that all hours not budgeted for in the base contract

bid must have been expended as the result of additions and

revisions to the contract.  These findings are sufficiently

detailed to allow us to understand the factual basis of Judge

Michalski's ruling, especially as they relate to the following

testimony: (1) Hix and Fletcher testified that they created job

codes for the time cards that would help them distinguish between

base and revised contract work, but did not inform some of the

foremen who actually filled out the time cards of those codes,

and some time cards contained no such codes; (2) the hours

spreadsheet/Exhibit 59 contained more hours than the time cards

did; (3) Fletcher arrived at his revised contract materials costs

amounts by telling his attorney to calculate these amounts from

documents which did not always relate only to the revisions and

from documents that might have been counted more than once.

          Alaska Electric does not appear to challenge the

sufficiency of Judge Michalski's conclusions of law.  The legal

basis of the ruling was that "the proof of the damages related to

any change orders [must be] sufficiently established for the

court to grant judgment and that is the burden of the plaintiff,"

using a "preponderance of the evidence" standard.  Although the

court cited no cases it accurately stated Alaska contract law.

We have held that:

               Although a contractor need not prove
          damages with mathematical precision, it may
          only recover those damages which it proves
          with reasonable certainty.  State v.
          Northwestern Constr., 741 P.2d 235, 237
          (Alaska 1987).  "Recovery of damages for a
          breach of contract is not allowed unless
          acceptable evidence demonstrates that the
          damages claimed resulted from and were caused
          by the breach."  Boyajian v. United States,
          423 F.2d 1231, 1235 (Ct. Cl. 1970).
               . . . . The contractor's failure to
          present any evidence demonstrating its
          increased costs justifies dismissal of its
          claims.  Id. at 1235-36.[15]
          The trial court's conclusions of law also required an

underlying contract interpretation ruling.  Alaska Electric

appears to have argued at trial that Trademark unilaterally

agreed to reimburse it for all costs resulting from any change to

the base contract made by any party, whereas Trademark appears to

have argued that only changes resulting from Revision No. 2 were

at stake and that the subcontract required Alaska Electric to

provide very specific proof "in sufficient detail to permit an

analysis of all material, labor, equipment, and overhead costs."

Based on his objection to the attribution of 1,311 labor hours to

revisions to the contract, Judge Michalski must have rejected the

"all costs" argument and concluded as a matter of law that only

those changes in the contract attributable to revisions were

compensable.16  We therefore think that the legal basis of Judge

Michalski's ruling is also sufficiently clear to facilitate


           The findings did not fail to address any necessary

points nor are they internally contradictory; the superior court

simply found that Alaska Electric had failed to present evidence

showing its damages with reasonable certainty.  In such a

situation appointment of a special master was not warranted.17  We

hold that Judge Michalski's findings of fact and conclusions of

law are "sufficiently detailed and explicit findings `to give the

appellate court a clear understanding of the basis of the trial

court's decision, and to enable it to determine the ground on

which the trial court reached its decision.' "18

B.             The Trial Court Need Not Justify Its Decision To
          Rule on the Civil Rule 41(b) Motion at the Close of the
          Plaintiff's Evidence Rather Than at the Close of the
          Defendant's Evidence.
          Civil Rule 41(b) provides that the trial court may rule

immediately on a motion for involuntary dismissal under that

rule, or alternatively "may decline to render any judgment until

the close of all the evidence."  Alaska Electric contends that a

judge facing a Rule 41(b) motion should have to explain why he or

she rules immediately instead of waiting until the close of all

evidence, arguing that this would be helpful upon review.  But

the purpose of granting the trial court discretion as to when to

decide a Rule 41(b) motion is to increase the trial court's

flexibility in managing the case, not to increase its workload or

provide additional points for appeal.  Alaska has traditionally

held a pragmatic view of Rule 41(b):  "Where plaintiff's proof

has failed in some aspect the motion should, of course, be

granted.  Where plaintiff's proof is overwhelming, application of

the rule is made easy and the motion should be denied."19  If the

trial court refuses to delay ruling on a Rule 41(b) motion, it is

because the plaintiff has failed to prove its case for the

reasons set out in the court's findings under Civil Rule 52(a).

Nothing would be gained from an additional requirement that the

trial court explain why it did not delay its ruling.  We decline

to hold that such an explanation is required under Civil Rule


C.             The Trial Court May Not Construe the Evidence in
          the Plaintiff's Favor When Ruling on a Civil Rule 41(b)
          Civil Rule 41(b) provides in part that upon a motion

for involuntary dismissal, the trial court may weigh the

evidence, evaluate the credibility of witnesses, and render

judgment against the plaintiff even if the plaintiff has made out

a prima facie case; alternatively the trial court may delay its

ruling until the close of all evidence.  Alaska Electric contends

that the permissive language of Rule 41(b) - "may weigh the

evidence" - leaves open the possibility that the judge may

construe the evidence in the light most favorable to the

plaintiff, similar to the standard for a directed verdict under

Civil Rule 50(a) in jury-tried cases.20  It asserts that the

superior court erred in failing to recognize that it had the

power to consider the evidence in the light most favorable to

Alaska Electric.  Alaska Electric admits that a memorandum of the

Court Rules Attorney demonstrates that the Alaska Supreme Court

in 198721 chose the current version of Civil Rule 41(b) - the

court may "weigh the evidence . . . even if the plaintiff has

made out a prima facie case - over another version that would

have explicitly required the trial court to view all evidence in

the light most favorable to the plaintiff.

          The 1987 rule change overruled our former Civil Rule

41(b) requirement that the trial judge deny a motion to dismiss

when the plaintiff has made an unimpeached prima facie case.22

The change in the text of the rule brought it into compliance

with the analogous federal rule,23 about which Wright & Miller

concludes that "[t]he trial judge is not to draw any special

inferences in the nonmovant's favor nor concern itself with

whether the nonmovant has made out a prima facie case."24  We

conclude that Judge Michalski did not err in refusing to view the

evidence in the light most favorable to the plaintiff.


          Because Judge Michalski's findings of fact and
conclusions of law provide sufficient details of the legal and
factual bases of his ruling, and because there are no
requirements that a trial court in ruling on a Rule 41(b) motion
(1) explain why it declines to defer a decision until the close
of all the evidence or (2) construe the evidence in the light
most favorable to the non-moving party, we AFFIRM the decision of
the superior court.
1    Alaska R. Civ. P. 41(b) provides:

          Involuntary Dismissal - Effect Thereof.  For
          failure of the plaintiff to prosecute or to
          comply with these rules or any order of
          court, a defendant may move for dismissal of
          an action or of any claim against the
          defendant.  After the plaintiff, in an action
          tried by the court without a jury, has
          completed the presentation of the plaintiff's
          evidence, the defendant, without waiving the
          right to offer evidence in the event that a
          motion is not granted, may move for a
          dismissal on the ground that upon the facts
          and the law the plaintiff has shown no right
          to relief.  The court as trier of the facts
          may then weigh the evidence, evaluate the
          credibility of witnesses and render judgment
          against the plaintiff even if the plaintiff
          has made out a prima facie case.
          Alternately, the court may decline to render
          any judgment until the close of all the
          evidence.  If the court renders judgment on
          the merits against the plaintiff, the court
          shall make findings as provided in Rule
          52(a).  Unless the court in its order for
          dismissal otherwise specifies, a dismissal
          under this subdivision and any dismissal not
          provided for in this rule, other than a
          dismissal for lack of jurisdiction, for
          improper venue, or for failure to join a
          party under Rule 19, operates as an
          adjudication upon the merits.
2    Judge Michalski noted in his oral findings of fact that he
weighed the evidence rather than viewing it in the plaintiff's
3    Ford v. Municipality of Anchorage, 813 P.2d 654, 655 n.2
(Alaska 1991).
4    Farmer v. State, 788 P.2d 43, 50 (Alaska 1990).
5    Crittell v. Bingo, 36 P.3d 634, 638 (Alaska 2001) (quoting
In re Estate of Kottke, 6 P.3d 243, 245 (Alaska 2000) (quoting
Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978))).
6    368 P.2d 546, 548 (Alaska 1962).
7    649 P.2d 710, 711 (Alaska 1982).
8    Id. at 711; see also Merrill, 368 P.2d at 548.
9    Alaska R. Civ. P. 52(a) provides in relevant part:

          (a)      In all actions tried upon the facts
          without a jury or with an advisory jury, the
          court shall find the facts specially and
          state separately its conclusions of law
          thereon and judgment shall be entered
          pursuant to Rule 58 . . . .  Requests for
          findings are not necessary for purposes of
          review.  Findings of fact shall not be set
          aside unless clearly erroneous, and due
          regard shall be given to the opportunity of
          the trial court to judge the credibility of
          the witnesses.  The findings of a master, to
          the extent that the court adopts them, shall
          be considered as the findings of the court. .
          . .  Findings of fact and conclusions of law
          are unnecessary on decisions of motions under
          Rules 12 or 56 or any other motion except as
          provided in Rule 41(b).
10    Merrill, 368 P.2d at 548.
11    Id. (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.
12    Winn v. Mannhalter, 708 P.2d 444, 451 (Alaska 1985).
13    Noey v. Bledsoe, 978 P.2d 1264, 1275-76 (Alaska 1999).
14    By filing this request for more specific factual findings in
the supreme court, Alaska Electric has exhausted its appeal as of
right pursuant to Alaska Rule of Appellate Procedure 202(a) and
AS 22.05.010(a) ("[A] party has only one appeal as a matter of
right from an action or proceeding commenced in . . . the
superior court.").
15    Fairbanks N. Star Borough v. Kandik Constr., Inc. & Assocs.,
795 P.2d 793, 798-99 (Alaska 1990), vacated in part on other
grounds on reh'g by, 823 P.2d 632 (Alaska 1991).
16    The subcontract demands proof "in sufficient detail to
permit an analysis of all material, labor, equipment, and
overhead costs."  General contract law, in contrast, requires
only a "reasonable basis" for the award; "[w]e will not require
that a plaintiff in a contract suit present an accountant's
balance sheet in order to substantiate his damages."  City of
Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 224
(Alaska 1978).   Plaintiffs in general contract cases can prove
damages through the "actual costs" method, the "jury verdict"
method, or sometimes even the disfavored "total costs" method.
See Municipality of Anchorage v. Frank Coluccio Constr. Co., 826
P.2d 316, 324-25 (Alaska 1992) (defining "actual costs" method as
adding up each expense incurred through breach; "jury verdict"
method as allowing jury to consider actual cost data, estimates
by experts, and calculations from similar projects; and "total
cost" method as permissible only where (1) the nature of the
losses makes it impossible or highly impracticable to determine
damages with reasonable accuracy, (2) plaintiff's bid or estimate
was realistic, (3) its actual costs were reasonable, and (4) it
was not responsible for the added expenses); Kandik Constr., 795
P.2d at 798 (defining "total cost" method of determining damages
for breach as the difference between the original bid or estimate
and the final cost).  The trial court appears to have determined
that none of the standards for using the total costs method was
17    Generally, appointment of a special master pursuant to Civil
Rule 53 should be reserved for cases in which (1) the issues are
unusually complex or specialized; (2) discovery is particularly
document-intensive; (3) resolving discovery disputes will be
especially time-consuming; (4) the parties are particularly
contentious or obstructionist; or (5) a master will promote a
more speedy and economical determination of the case.  Peter v.
Progressive Corp., 986 P.2d 865, 870 (Alaska 1999).
18    Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (quoting
Irish v. United States, 225 F.2d 3, 8 (9th Cir. 1955)).
19    Rogge v. Weaver, 368 P.2d 810, 813 (Alaska 1962), overruled
on other grounds by Alaska Supreme Court Order No. 798 (January
14, 1987), cited with approval in 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure  2573.1, at 501 (2d
ed. 1994).
20    See Howarth v. Pfeifer, 423 P.2d 680, 682 (Alaska 1967)
(holding that in determining motion for directed verdict, court
views evidence in light most favorable to non-moving party).
21    Alaska Supreme Court Order No. 798 (January 14, 1987).
22    Before the 1987 amendment to the rule, Rogge v. Weaver
required the trial court to deny a motion for involuntary
dismissal when the plaintiff had made an unimpeached prima facie
case.  Rogge, 368 P.2d at 813.
23    Fed. R. Civ. P. 52(c).
24    Wright & Miller, supra note 19,  2573.1, at 497-98
(citation omitted).  Even as early as 1987 when the changes to
Civil Rule 41(b) were ordered, members of our court had already
concluded that the effect of the new rule was to foreclose the
possibility that the old light-most-favorable rule would continue
to apply to Civil Rule 41(b) decisions.  Thomas v. Anchorage Tel.
Util., 741 P.2d 618, 633-34 (Alaska 1987) (Matthews, J.,