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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID FLETCHER, d/b/a )
ALASKA ELECTRIC COMPANY, ) Supreme Court No. S-10609
)
Appellant,
) Superior Court No.
) 3AN-00-10875 CI
v. )
)
O P I N I O N
TRADEMARK CONSTRUCTION, )
INC., an Alaska corporation, and ) [No. 5760 - December 5,
2003]
UNITED PACIFIC INSURANCE )
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
changed.
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
dismissal
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.
2.
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
review.
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
41(b).
C. The Trial Court May Not Construe the Evidence in
the Plaintiff's Favor When Ruling on a Civil Rule 41(b)
Motion.
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.
V. CONCLUSION
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
favor.
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.
1955)).
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
met.
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.,
concurring).
