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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. Benediktsson (02/16/2007) sp-6101

Larson v. Benediktsson (02/16/2007) sp-6101, 152 P3d 1159

     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,


) Supreme Court No. S- 11674
Appellant, )
) Superior Court No. 3AN-03-11262 CI
v. ) District Court No. 3AN-02-7369 CI
Appellee. ) No. 6101 - February 16, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  Kevin G. Brady, Anchorage,  for
          Appellant.  Isaac Derek Zorea, Anchorage, for

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

          BRYNER, Chief Justice.

          After  agreeing  to  construct  two  houses  for  Chris
Benediktsson, Einar Larson filed a district court action  against
Benediktsson for unpaid wages.  The controversy in district court
centered   on  Larsons  employment  status.   Alaska   law   bars
unregistered   contractors  from  claiming  pay  for   performing
contract work.  Larson was not a licensed contractor, but alleged
that  he  worked  for  Benediktsson as  an  employee,  not  as  a
contractor.   After denying summary judgment for Benediktsson  on
the  ground  that  the  facts on this point  were  disputed,  the
district court held a trial, found that Larson had worked  as  an
employee, and entered judgment against Benediktsson.  On  appeal,
the  superior  court reversed the order denying summary  judgment
without  considering the evidence at trial.   The  main  question
before  us  here  is whether the order denying  summary  judgment
could be reviewed on appeal after the district court held a trial
on  the  merits.  In keeping with the approach followed  by  most
other  courts, we hold that an order denying summary judgment  on
factual  grounds  becomes unreviewable after  trial.   Since  the
district  court  based  its order on the  existence  of  disputed
facts,  we  reverse the superior courts decision  on  appeal  and
reinstate the district courts judgment.
     A.   Facts
          The  relevant  facts can be set out briefly.1   In  the
fall  of  2000 Chris Benediktsson, acting on a recommendation  by
the  owner of Tweed Excavating & Construction (Tweed), telephoned
Einar  Larson and asked him to estimate the cost for framing  two
houses  on  lots  Benediktsson owned  in  Chugiak.   Benediktsson
advised  Larson  that  Tweed had quoted a  price  of  $40,000  to
oversee  the construction.  Larson estimated that it  would  take
him  about  sixty eight-hour days to frame each house  and  would
cost  $12,000  per house  about $25 per hour.  Larson  also  said
that  he  did not have a residential contractors license and  did
not  want  to obtain one.  Benediktsson responded that he  was  a
general contractor himself and preferred to pay Larson an  hourly
rate.   He  told Larson to get started, instructing him  to  keep
track of all extra work so that Benediktsson could make it right.
          Larson picked up the house plans from Tweed, began  the
project,  and  continued on the job until October 2001   about  a
year  after  he  started.  In performing his  work  Larson  spent
significant  amounts  of time on various tasks  besides  framing:
correcting deficiencies in the house plans; preparing  the  sites
for construction; performing material take-offs; obtaining quotes
from various subcontractors and scheduling their work; expediting
materials  to  and from the sites; and generally  overseeing  the
construction  of  both homes.  Although Larson did  some  of  the
extra  work  on  his own initiative because it was  necessary  to
enable  him  to  begin his framing, he performed most  of  it  at
Benediktssons specific request.
          Throughout the course of the project Benediktsson  paid
Larson  substantially  less  than his billings  and  consistently
lagged   behind   in  his  payments.   In  early   October   2001
Benediktsson visited Larson on the job and demanded  that  Larson
complete both houses within three days.  Larson replied that this
would   be   impossible;  he  then  quit  working.   Benediktsson
eventually finished the construction without Larson and sold both
houses.   In November 2001 Larson sent Benediktsson a final  bill
for  his unpaid work.  Benediktsson refused to pay, since  Larson
had quit working.  On December 10 Larson responded to the refusal
by  recording  mechanics  liens on  Benediktssons  lots  totaling
     B.   Proceedings
          1.   District court proceedings
          In  May 2002 Benediktsson filed a district court action
to  cancel  the liens on his property, asserting that Larson  had
failed  to take action to enforce the liens within six months  of
their  filing,  as  required  by Alaska  law.2   Larson  promptly
answered with a letter advising the court that he was pursuing  a
claim  for  wages with the Alaska Department of Labor and  asking
that  his liens be maintained until the claim was resolved.   The
court  accepted  Larsons  letter as  a  nonconforming  answer  to
Benediktssons  complaint  and  scheduled  the  case  for  further
           Larson subsequently retained an attorney, who moved to
amend  the  original answer by adding counterclaims  for  Larsons
unpaid  wages. Benediktsson opposed the motion, arguing  that  it
was  untimely and alleging that the proposed counterclaim  lacked
merit  because  Larson  apparently  had  not  been  a  registered
contractor as required under AS 08.18.151 and, [i]f this is true,
Mr. Larson has no standing to pursue any legal actions to collect
unpaid wages.  The district court granted Larsons motion to amend
and allowed him to pursue the counterclaims.3
          Benediktsson then moved for summary judgment,  claiming
that  Larson could not pursue his counterclaims, because  he  had
worked   as   a  specialty  contractor  without  being   properly
registered   and   was   therefore  barred   from   suing   under
AS  08.18.151.   Benediktsson supported his motion with  evidence
establishing that Larson was not a registered contractor when  he
worked on the houses.
          Larson  opposed  the summary judgment motion,  claiming
that  he had agreed to work as Benediktssons employee  not  as  a
contractor   after receiving assurances that Benediktsson  was  a
licensed general contractor.  Larson supported this claim with  a
personal   affidavit  accompanied  by  his  state  wages   claim,
asserting that this evidence raised factual issues concerning his
employment  status,  thus precluding entry of  summary  judgment.
After  hearing oral arguments on the issue, District Court  Judge
James  Wanamaker denied Benediktssons motion for summary judgment
and  set  the  case  for trial, advising the parties  that  [t]he
central remaining issue to be tried is whether or not Larson  was
acting as a specialty contractor.
          After  a  bench  trial centering on this  issue,  Judge
Wanamaker issued written findings of fact and conclusions of  law
determining  that Larson had performed the work  as  an  employee
rather  than  as  a contractor and was entitled to  unpaid  wages
totaling $16,610.09.
          2.   Superior court appeal
          Benediktsson  appealed to the superior court,  limiting
his  appeal to two narrow points of error: first, that the  trial
court  erred in allowing Larson to amend his complaint to include
counterclaims for unpaid wages; second, that the court  erred  in
denying  Benediktssons motion for summary judgment.  As  to  both
points  Benediktsson  urged the superior  court  to  confine  its
review to the pleadings filed before trial and to conclude  as  a
matter  of  law  that  Larson  was barred  from  maintaining  his
counterclaims because undisputed evidence established that he was
not  properly  registered as a contractor when he  performed  the
disputed work.
          Responding  to  Benediktssons  initial  point,   Larson
argued  that the district court had not abused its discretion  in
allowing  him  to  amend  his answer.  As  to  the  second  point
Benediktssons  challenge to the summary judgment  ruling   Larson
insisted that the trial courts finding that he had worked  as  an
employee  could  only be reversed if the superior court  reviewed
the  entire  record, including the trial, and was convinced  that
the  district courts findings after trial were clearly erroneous.
In Larsons view, ample evidence supported the findings.
          The superior court accepted Benediktssons invitation to
limit its review to the summary judgment record.  Noting that the
case  presented a question of legal interpretation,  not  factual
interpretation,  the court determined that it  should  review  de
novo  the  district  courts  denial  of  summary  judgment.   The
superior  court proceeded to rule that [a] contractor is  defined
by  the  nature  of  the  work  performed;  it  then  found  that
undisputed evidence showed that Larson performed the  work  of  a
contractor  without complying with the registration  requirements
of AS 08.18.611.  On this basis, the court concluded that Larsons
counterclaims were barred as a matter of law and should have been
dismissed on summary judgment.  Applying the same rationale,  the
court further ruled that the district court abused its discretion
in  allowing  Larson to include the counterclaims in his  amended
          We  then  granted discretionary review of the  superior
courts ruling.
          In  seeking  review of the superior courts decision  on
appeal,  Larson  challenges the superior courts reversal  of  the
district courts order denying summary judgment.  He asserts  that
the   superior   court   erred  by  reviewing   a   nonreviewable
interlocutory order.  Larson also challenges the superior  courts
decision  to reverse the order allowing him to amend his  answer,
insisting that the district court did not abuse its discretion in
allowing the amendment.  Since the summary judgment issue becomes
moot  if  Larson was improperly allowed to amend his  answer,  we
consider the amendment issue first.
     A.   Order Granting Larsons Motion To Amend His Answer
          Larson   contends  that  the  district  court  properly
allowed  him  to  amend  his  answer by  including  counterclaims
against  Benediktsson  for  unpaid wages.   He  points  out  that
Alaskas Rules of Civil Procedure require amendments to be  freely
given when justice so requires4 and that our cases recognize that
trial  courts  have  broad discretion to allow  amendments.5   In
response,  Benediktsson  renews  the  argument  accepted  by  the
superior  court  that Larson was barred as a matter of  law  from
asserting  counterclaims  in  his  answer  because  he   was   an
unregistered contractor.  In addition, to the extent that Larsons
counterclaims  requested relief under the equitable  doctrine  of
quantum  meruit,  Benediktsson contends that the  district  court
lacked  authority  to  allow the amendment because  the  district
court is not a court of equity and has no jurisdiction to rule on
equitable claims.6
          As  Larson correctly recognizes, a party who  seeks  to
amend a pleading after the allotted time period for amending as a
matter of right must seek leave of the court; but leave to  amend
must  be freely given.7  The trial court has broad discretion  to
determine whether to allow a party to amend a pleading.8  We will
reverse an order allowing amendment only when our review  of  the
entire record leaves us with a firm and definite conviction  that
the trial court erred in its ruling.9
          Here,   after  Larson  sought  leave  to  include   his
counterclaims  in  an  amended answer, Benediktsson  opposed  the
amendment  in  part  because Larsons motion  was  untimely.   But
Larsons attorney had prepared and submitted the motion soon after
being retained, and the motion was filed shortly after the sixty-
day  deadline  for  amending as a matter of  right  had  expired.
These circumstances do not cry out for denial.
          Benediktsson also opposed the motion on the ground that
Larsons  counterclaims  were  merely  an  attempt  to  skirt  the
requirements   of  AS  08.18.151.   In  advancing  this   theory,
Benediktsson  asserted  a  conclusory  claim  that   Larson   had
misrepresented  himself  as  a registered  contractor  and  that,
accordingly,  it  appeared that he had no  standing  to  sue  for
unpaid  wages, pursuant to AS 08.18.151.  Benediktsson  supported
this  allegation with a copy of a letter from his own counsel  to
Larson,  advancing  similar claims, along with  an  affidavit  by
Benediktssons  counsel  attesting that he  had  indeed  sent  the
          These  conclusory  allegations did  not  in  themselves
amount  to a prima facie showing that Larsons claims were  barred
as  a  matter of law.  Moreover, even assuming that some evidence
to  that  effect might have been gleaned from the nature  of  the
work  described  in the counterclaims themselves,  this  evidence
would hardly have ruled out all possibility of a viable cause  of
action.  To the contrary, our cases demonstrate that the validity
of  an  ostensibly unregistered contractors claim often turns  on
specific facts of the case.
          Alaska Statutes 08.18.151 requires registration  to  be
alleged and proved whenever a person acting in the capacity of  a
contractor  sues for money earned in performing  work  for  which
registration is required:
          A   person  acting  in  the  capacity  of   a
          contractor . . . may not bring an action in a
          court  of  this  state for the collection  of
          compensation for the performance of  work  or
          for   breach   of   a  contract   for   which
          registration  is required under this  chapter
          without   alleging  and  proving   that   the
          contractor  . . . was a registered contractor
          .   .  .  as  applicable,  at  the  time   of
          contracting  for  the  performance   of   the
          In  determining whether specific claimants  and  claims
fall  within  the  scope of this requirement, we  have  generally
looked to the definition of contractor set out in AS
But  we  have  refused  to  interpret these  provisions  broadly.
Instead,  recognizing that rigid enforcement  could  yield  harsh
consequences by barring  meritorious claims,12 we have identified
flexible  standards  for determining whether  AS  08.18.151  bars
particular claims.
          For  example, we have ruled that section .151 does  not
bar   suit  by  a  contractor  who  is  unregistered  but  proves
substantial compliance with the registration requirements.13   We
have  emphasized the importance of determining whether the  party
an   unregistered  contractor  seeks  to  sue  is   an   intended
beneficiary of the registration requirements.14  We have inquired
whether  the  claimant  made  misrepresentations  about  being  a
registered   contractor  and  whether  these   misrepresentations
fostered  detrimental reliance.15  More specifically, in  a  case
involving  a plaintiff who claimed to have worked as an employee,
we  have  applied a nature of the work test similar to  the  test
advocated  by  Larson  below to determine  whether  the  claimant
qualified as a contractor or was merely an employee.16
          As  these  cases  illustrate,  determining  whether   a
particular plaintiff qualifies as a person acting in the capacity
of  a contractor often turns on the resolution of disputed, case-
specific  facts.  Here, when it ruled on Larsons motion to  amend
his complaint, the district court had no definitive factual basis
for concluding that Larson could only assert his counterclaims as
a person acting in the capacity of a contractor and was therefore
barred  from  suing unless he alleged and proved that  he  was  a
registered contractor.  Accordingly, the court did not abuse  its
discretion  in refusing to deny Larsons motion to amend  on  this
          Benediktsson separately argues that the district  court
abused  its  discretion by allowing Larson to file a counterclaim
on the equitable theory of quantum meruit.   Benediktsson reasons
that  this  claim was legally barred because the  district  court
lacks jurisdiction to decide claims in equity.  But this argument
fails on its premise that the district court can never decide  an
equitable issue.  In an analogous setting we have expressly  held
that  when  consideration of an equitable claim is necessary  and
incidental  to the resolution of a district court action  founded
in  contract, resolving the claim does not convert the case  into
an  equitable  action.17   Benediktssons jurisdictional  argument
fails   for  a  separate  reason  as  well:  the  district  court
ultimately  based  its decision on Larsons claim  for  breach  of
contract, not his quantum meruit claim, so any error in accepting
          the equitable claim would be harmless at most.
          In  sum,  we conclude that Benediktsson has  failed  to
establish  that  the  district court  abused  its  discretion  in
deciding to allow Larson to amend his answer.
     B.    Post-Trial  Reviewability of  Orders  Denying  Summary
          As  previously  mentioned,  in  deciding  Benediktssons
appeal  the  superior  court reviewed and reversed  the  district
courts  order denying Benediktssons motion for summary  judgment.
In  doing  so,  the superior court confined its decision  to  the
summary judgment record even though the district court had held a
full  trial  on  the merits.  Larson, relying on analogous  cases
decided in other jurisdictions, contends that the superior  court
erred in this ruling because an order denying summary judgment is
interlocutory by nature and becomes unreviewable upon entry of  a
final  judgment  after  trial.  Benediktsson,  emphasizing  prior
cases in which this court has reviewed summary judgment rulings,18
responds  that  the superior court had authority  to  review  the
district courts summary judgment ruling.
          1.   Discussion of this issue in Ondrusek v. Murphy
          Our  consideration of this point is foreshadowed by our
recent decision in Ondrusek v. Murphy,19 which was published after
the  parties  here  submitted  their  briefing.   In  that  case,
Ondrusek filed an appeal after a jury trial, challenging an order
denying  summary judgment.  The appellee raised no  objection  to
review  of the point, opting to oppose Ondruseks claims on  their
merits.20   Given these circumstances, we elected to  decide  the
appeal  as presented.  We nevertheless questioned whether  orders
denying summary judgment should be reviewable after trial.21
          In  addressing this question, we pointed out that  this
court  had previously allowed post-trial review of orders denying
summary   judgment  when  they  addressed  legal   issues   whose
resolution  affected the trial.22  In Ondrusek, by contrast,  the
motion for summary judgment had apparently been denied because of
an  unresolved factual dispute.  We noted that in such  cases  an
argument  that  the  summary judgment order  became  unreviewable
after  trial  would be favorably received in the federal  courts,
and in many state jurisdictions.23 After listing numerous federal
and  state  cases  addressing  the  issue   which  overwhelmingly
militated  against  reviewing such orders  we briefly  considered
our own relevant case law, observing that the issue remained open
in  Alaska.   We  then  stated that we would  seriously  consider
adopting  the  majority  approach when  the  point  was  properly
raised.24   The  issue we reserved in Ondrusek  is  now  squarely
before the court.
          2.   Case law in other jurisdictions
          Nearly  every  federal court of appeals has  barred  at
least some post-trial appeals seeking to challenge orders denying
summary  judgment.25  The general rule has two  expressions:  one
broad,  one  narrow.  The broader form of the rule outlaws  post-
trial  review of an order denying summary judgment regardless  of
the reason for denial.  The narrower approach prohibits only post-
trial  review  of orders denying summary judgment on  the  ground
that material factual issues exist.
               a.   The broad prohibition
          Courts  adopting the broader prohibition tend to  focus
on   the   main  purpose  of  summary  judgment  motions   saving
litigation  time   reasoning that appellate review  of  an  order
denying summary judgment serves no purpose after a case is  tried
and  a  trial  record has been developed.26  In  Glaros  v.  H.H.
Robertson  Co., the Federal Circuit explained, Denial of  summary
judgment is strictly a pretrial order that decides only one thing
that  the  case should go to trial, i.e., that the claim  remains
pending  for  trial.27  In Johnson International Co.  v.  Jackson
National Life Insurance Co., the Eighth Circuit Court of  Appeals
echoed this statement, adding that [t]he district courts judgment
on  the  verdict after a full trial on the merits thus supersedes
the earlier summary judgment proceedings.28
          Courts that absolutely ban such appeals have also cited
the difficulty of deciding whether the trial court denied summary
judgment  on  legal or factual grounds, especially because  trial
courts  often deny summary judgment without comment.29  Moreover,
in  Black  v. J.I. Case Co., the Fifth Circuit Court  of  Appeals
questioned whether creating a workable legal/factual dichotomy is
realistically possible:
          [S]uch  a dual approach would require  us  to
          craft  a new jurisprudence based on a  series
          of dubious distinctions between law and fact.
          And,  such an effort  added to the  tasks  of
          already overburdened courts of appeal   would
          benefit  only those summary judgment  movants
          who failed to properly move for judgment as a
          matter of law at the trial on the merits.  If
          such  motions are properly made,  the  denied
          motion  for  summary  judgment  need  not  be
          reviewed, because the legal issues determined
          by  the district court are freely reviewable,
          and  the  case may be reversed . . . on  that
          Other  courts  adopting  a broad  approach  have  cited
concerns  for fairness to the prevailing party at  trial.   In  a
frequently  quoted passage, the Ninth Circuit  Court  of  Appeals
explained its refusal to review any denial of summary judgment as
               To be sure, the party moving for summary
          judgment  suffers an injustice if his  motion
          is  improperly denied.  This is true even  if
          the jury decides in his favor.  The injustice
          arguably  is  greater when the  verdict  goes
          against him.  However, we believe it would be
          even more unjust to deprive a party of a jury
          verdict   after   the  evidence   was   fully
          presented,  on  the  basis  of  an  appellate
          courts  review  of whether the pleadings  and
          affidavits   at  the  time  of  the   summary
          judgment motion demonstrated the need  for  a
          trial.  After considerable research, we  have
               found no case in which a jury verdict was
          overturned because summary judgment had  been
          improperly denied.  We hold, therefore,  that
          the  denial of a motion for summary  judgment
          is  not reviewable on an appeal from a  final
          judgment  entered after a full trial  on  the
          Some  courts  have apparently converted to the  broader
view  after initially adhering to the narrower form of the  rule.
In  Holley  v.  Northrop Worldwide Aircraft Services,  Inc.,  the
Eleventh  Circuit Court of Appeals ruled that review  of  summary
judgment  denials  would  be  barred  after  trial  only  if  the
appellant  acknowledged  by the time  of  trial  that  sufficient
evidence  existed  to present the case to the jury  or  that  the
evidence originally available on summary judgment had changed  in
favor  of  the  party  opposing  summary  judgment.32   In  these
situations,  Holley  reasoned, barring  review  is  necessary  to
prevent  parties from trying to escape the impact of  facts  that
come  to  light  after  the denial of summary  judgment:  Summary
judgment  was  not  intended  to be a  bomb  planted  within  the
litigation  at its early stages and exploded on appeal;  instead,
it  was  intended as a device to diminish the effort,  time,  and
costs  associated  with unnecessary trials.33   To  prevent  such
abusive tactics, the court declared that a party may not rely  on
the  undeveloped state of the facts at the time [the party] moves
for  summary judgment to undermine a fully-developed set of trial
facts  which  militate against [the partys]  case.34   But  while
Holley  seemingly intended to adopt only the narrow form  of  the
rule,  the  Eleventh Circuit in later cases declined  to  confine
Holley  to  its  facts,  stating without qualification  that  the
denial  of a motion for summary judgment is unreviewable after  a
trial on the merits.35
               b.   The narrow prohibition
          A  separate  group of federal courts has  narrowed  the
prohibition  by  allowing post-trial appeals  of  orders  denying
motions  for summary judgment when the orders have been based  on
legal  grounds.   The  Seventh  Circuit  Court  of  Appeals,  for
example,  initially appeared to have adopted the  broad  approach
barring post-trial review.36  But the following year, it reviewed
an  order  denying summary judgment on legal grounds, recognizing
that  although  post-trial review of orders denying  motions  for
summary judgment is usually barred, the case at issue presented a
potentially  dispositive legal question, so the subsequent  trial
did not make the issue moot.37
          The Tenth Circuit Court of Appeals similarly seemed  to
adopt  the  broad rule at first but then narrowed it in  a  later
case.  In Ruyle v. Continental Oil Co.,38 the court reversed  the
trial  courts  denial  of  a  motion for  summary  judgment  that
asserted a theory of collateral estoppel.  In doing so, the court
of  appeals distinguished its earlier ruling adopting  the  broad
form of the rule in Whalen v. Unit Rig, Inc.39 by recognizing the
critical distinction between summary judgment motions raising the
sufficiency  of  the evidence to create a fact question  for  the
          jury and those raising a question of law that the court must
          The Second Circuit Court of Appeals falls into the same
category.  In  Pahuta v. Massey-Ferguson, Inc., the court adopted
the  broader  rule,  simply declaring  that  it  would  generally
decline  to review orders denying summary judgment after  a  case
had  been  tried.41  While it has never disavowed  Pahutas  broad
language, the Second Circuit, in Rothstein v. Carriere,  reversed
an  order denying summary judgment on legal grounds, even  though
the case had been tried to a jury after the motion was denied.42
          The Third Circuit Court of Appeals also has reversed  a
jury verdict based on review of an order denying summary judgment
on  legal  grounds.  In Pennbarr Corp. v. Insurance Co. of  North
America, the district court denied summary judgment on a contract
claim.43  In reversing the order on review after trial, the court
of   appeals,  characterizing  disputes  about  the  meaning   of
contracts  as presenting questions of law, ruled that  the  order
was  reviewable  because the district court  had  denied  summary
judgment on a legal basis.44
     C.   Alaska Case Law
          In Ondrusek, we recognized that this court has reversed
a verdict on the basis of error in denying summary judgment on at
least  one  occasion  a case in which the order  denying  summary
judgment  was  based on the resolution of a legal  question  that
affected  the  trial.45   In  Western  Pioneer,  Inc.  v.  Harbor
Enterprises, Inc., both parties disputing the terms  of  a  lease
filed  motions  for summary judgment; the superior  court  denied
both  motions, ruling that a disputed issue existed  because  the
lease agreement was reasonably susceptible to different meanings.46
At trial, the parties litigated the meaning of the agreement, and
the jury found in favor of Harbor Enterprises.47  Western Pioneer
then  appealed, arguing that the superior court erred in  denying
its motion for summary judgment.48  We treated the meaning of the
contract  as  a question of law and ruled on the issue  de  novo.
After reviewing the record and determining that the contract  had
only  one  reasonable meaning, we concluded that the trial  court
had  committed a legal error in deciding that an unresolved issue
precluded summary judgment.49  Because this legal error  affected
the conduct of the trial, we reversed the jury verdict for Harbor
          Shortly  after Western Pioneer, we reviewed  a  similar
order  denying  summary  judgment  in  Johnson  v.  Alaska  State
Department of Fish and Game.51  In Johnson, the appellants  moved
for  summary judgment on their discrimination claim,  asking  the
trial  court to give preclusive effect to the Alaska Human Rights
Commissions  finding  of discrimination.52   The  superior  court
denied  the  motion without comment.53  On appeal, we ruled  that
orders denying summary judgment could be reviewed on appeal after
trial,  but only if the facts applicable to the summary  judgment
ruling were not in dispute.54  Because the underlying facts  were
undisputed and the superior court had denied summary judgment  on
a  legal basis, we reviewed the order, determined that the  court
had  erred  as  a  matter  of  law  in  failing  to  enforce  the
Commissions finding, and remanded for a modified judgment  giving
          the Commissions finding preclusive effect.55  Like Western
Pioneer,  then,  Johnson allowed post-trial review  of  an  order
denying  summary judgment only because the order had been entered
on a legal ground that affected the subsequent trial.
     D.    Reviewability of District Courts Order Denying Summary
          Considering  our own prior rulings and  the  compelling
weight of the federal cases, we conclude that policy, reason, and
precedent  militate in favor of a rule that precludes  post-trial
review  of orders denying motions for summary judgment  at  least
when  the motions are denied on the basis that there are  genuine
issues of material fact.56  We hold, in such cases, that the order
becomes unreviewable after a trial on the merits.
            The  district  court  in  this  case  denied  summary
judgment  to  Benediktsson because it determined that  a  genuine
factual dispute existed as to Larsons employment status.  Despite
the  trial  courts reliance on this factual ground,  Benediktsson
claims  that  the superior courts review of the summary  judgment
order  was proper.  Citing Johnsons statement allowing post-trial
review  if  the  facts applicable to the summary judgment  ruling
were  not in dispute,57 Benediktsson insists that this case meets
Johnsons  condition  because  both  he  and  the  superior  court
believed  that  no  issues  of material  fact  prevented  summary
judgment  and that the only material issue  raised a  pure  legal
question: whether Larson was an employee or a contractor.
          But  the  approach  we  have  adopted  focuses  on  the
district  courts  basis for ruling, not on Benediktssons  or  the
superior  courts  belief that the case could  be  resolved  as  a
matter  of  law.  To be sure, Benediktsson could  have  raised  a
similar  challenge  to  the judgment the district  court  entered
after  trial;  but he elected not to challenge the  courts  final
judgment, expressly urging the superior court to review only  the
order denying summary judgment and the record before the district
court when it entered that order.
          The  superior court accepted Benediktssons argument and
reviewed  the case on the narrow issue he presented.   The  court
reversed the district courts summary judgment order, finding that
any  unresolved facts were immaterial as a matter of law  because
regardless of the case-specific circumstances surrounding Larsons
agreement  with Benediktsson  the tasks Larson agreed to  perform
qualified  by  literal definition as contractors  work  and  thus
required  him  to  be  registered.  Yet  as  we  pointed  out  in
discussing  the district courts decision granting Larsons  motion
to amend his answer, Larsons employment status did not present  a
pure   issue   of  law:  under  Alaskas  flexible  approach   for
determining contractor status, Larsons agreement to frame  houses
for  Benediktsson did not, standing alone, make  him  [a]  person
acting in the capacity of a contractor.58  Because resolving  the
case-specific  facts  surrounding  the  disputed  agreement   and
Larsons   registration  status  might  have   made   a   material
difference,  we  see  no basis for treating the  district  courts
order  denying summary judgment as having been based on  a  legal
ground arising from undisputed facts.
          Since  we  conclude  that  the  district  court  denied
          summary judgment on factual grounds, it follows that after the
court  conducted a trial, its order denying summary judgment  was
unreviewable on appeal to the superior court.  Since  the  narrow
form  of  the rule precluding post-trial review applies here,  we
find  no  need  to consider whether the broader  form  should  be
applied in other situations.
          We  hold  that  an  order denying summary  judgment  on
factual  grounds becomes unreviewable on appeal after a trial  on
the  merits.   Applying  this rule,  we  further  hold  that  the
district courts summary judgment order was not reviewable by  the
superior  court.  We also discern no error or abuse of discretion
in the district courts order allowing Larson to amend his answer.
Because Benediktssons appeal challenged no other aspects  of  the
district  courts  judgment, we VACATE the superior  courts  order
granting  the appeal, AFFIRM the district courts final  judgment,
and  REMAND with directions that the district courts judgment  be
     1     The  district  court entered detailed  findings  after
trial  establishing the basic facts of the case.  These  findings
have  not been challenged on appeal, and we rely on them for  our

     2    See AS 34.35.080.

     3     While  Larsons original motion to amend  was  pending,
Benediktsson deposited funds with a title company to replace  the
liens;  this required Larson to file a second motion  seeking  to
amend  the  complaint not only to include the  counterclaims  but
also  to  add the title company as an indispensable third  party.
The  district  courts  order allowing the  counterclaim  actually
addressed  this  second amended answer.  The order  granting  the
amendment  in  turn prompted Benediktsson to amend  his  original
pleadings  to  answer  Larsons counterclaim,  allege  affirmative
defenses, assert counterclaims against Larson, and name the title
company  as  a party.  None of these modified pleadings  had  any
bearing on the issues raised here.

     4    Alaska R. Civ. P. 15(a).

     5     See,  e.g., Shooshanian v. Wagner, 672 P.2d  455,  458
(Alaska 1983).

     6    See AS 22.15.050.

     7    Alaska R. Civ. P. 15(a).

     8    Shooshanian, 672 P.2d at 458.

     9    Vertecs Corp. v. Reichhold Chems., Inc., 671 P.2d 1273,
1277 (Alaska 1983).

     10    AS 08.18.151.

     11    See Gross v. Bayshore Land Co., 710 P.2d 1007, 1010-11
(Alaska  1985); Sumner Dev. Corp. v. Shivers, 517 P.2d  757,  761
(Alaska 1974).  AS 08.18.171(4) defines contractor as

          a   person   who,  in  the  pursuit   of   an
          independent business, undertakes or offers to
          perform,  or  claims to have the capacity  to
          perform,  or submits a bid for a  project  to
          construct, alter, repair, move, or demolish a
          building,  highway, road,  railroad,  or  any
          type of fixed structure, including excavation
          and   site   development  and   erection   of
          scaffolding;  contractor includes  a  general
          contractor,  builder, mechanical  contractor,
          specialty contractor, and subcontractor.
     12     See,  e.g.,  Brandner v. Agre, 80  P.3d  691,  694-96
(Alaska   2003);  Alaska  Protection  Servs.,  Inc.  v.  Frontier
Colorcable, Inc., 680 P.2d 1119, 1121-23 (Alaska 1984).

     13     See,  e.g., McCormick v. Reliance Ins. Co.,  46  P.3d
1009, 1012 (Alaska 2002); Brandner, 80 P.3d at 694-95.

     14     See  Gross, 710 P.2d at 1011.  Gross states  that  an
important step is to determine whether the person an unregistered
contractor  wants to sue is an intended beneficiary of  AS  08.18
but  Gross  doesnt explicitly express reluctance  at  prohibiting
unregistered contractors from suing parties the legislature didnt
intend to protect.  Id.

     15    Id. at 1012.

     16    Sumner Dev. Corp., 517 P.2d at 761.

     17    Brandner, 80 P.3d at 693-94.

     18    Benediktsson specifically emphasizes Johnson v. Alaska
State Dept of Fish & Game, 836 P.2d 896, 904 (Alaska 1991).

     19     Ondrusek  v. Murphy, 120 P.3d 1053, 1056 n.2  (Alaska

     20    Id.

     21    Id.

     22    Id.

     23    Id.

     24    Specifically, we stated:

          Often summary judgment motions are denied  on
          the  basis  that there are genuine issues  of
          material fact.  At least as to motions denied
          on  that  basis, this court will give serious
          consideration  in the future to  adoption  of
          what seems to be the majority view concerning
          reviewability  of  summary judgment  denials,
          when the point is properly raised.

     25      Lama v. Borras, 16 F.3d 473, 476 n.5 (1st Cir. 1994)
(The  [defendants] attack on the denial of summary  judgment  has
been  overtaken by subsequent events, namely, a full-dress  trial
and an adverse jury verdict.  In these circumstances, we will not
address the propriety of the denial of summary judgment.); Pahuta
v.  Massey-Ferguson, Inc., 170 F.3d 125, 129-30 (2d  Cir.  1999);
Chesapeake  Paper Prods. Co. v. Stone & Webster  Engg  Corp.,  51
F.3d  1229, 1234-36 (4th Cir. 1995); Black v. J.I. Case  Co.,  22
F.3d  568, 570-72 (5th Cir. 1994); Jarrett v. Epperly,  896  F.2d
1013, 1016 (6th Cir. 1990); Watson v. Amedco Steel, Inc., 29 F.3d
274,  277-78  (7th Cir. 1994); Johnson Intl Co. v.  Jackson  Natl
Life  Ins.  Co., 19 F.3d 431, 434 (8th Cir. 1994); Locricchio  v.
Legal Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987);  Lind
v.  United Parcel Serv., Inc., 254 F.3d 1281, 1284-86 (11th  Cir.
2001);  Glaros  v. H.H. Robertson Co., 797 F.2d 1564,  1573-74  &
n.14  (Fed.  Cir. 1986). The Tenth Circuit Court of  Appeals  has
granted  post-trial  summary  judgment,  but  distinguished  that
situation from one in which the summary judgment had been  denied
because factual issues existed.  Ruyle v. Continental Oil Co., 44
F.3d  837,  842 (10th Cir. 1994). In addition to these  published
opinions,  the  Court  of Appeals for the  District  of  Columbia
Circuit  has cited some of these cases and refused review  in  an
unpublished opinion.  Robinson v. Garrett, 1992 WL 132470, at  *1
(D.C. Cir. May 8, 1992).

          Although  we  confine our discussion  of  the  test  to
federal  cases,  we note that many state courts  likewise  reject
post-trial  appeals  of  orders denying  summary  judgment.   The
reasoning  of  these  courts echoes that of the  federal  courts.
See,  e.g., Evans v. Jensen, 655 P.2d 454, 459 (Idaho App.  1982)
(explaining  that a final judgment after trial should  be  tested
upon  the  record made at trial not at the time summary  judgment
was  denied);  Kiesau v. Bantz, 686 N.W.2d 164, 174  (Iowa  2004)
(explaining that after a full trial on the merits the  denial  of
summary  judgment  merges  with the trial);  Morgan  v.  American
Univ.,  534  A.2d 323, 326 (D.C. 1987); Skowronski v. Sachs,  818
N.E.2d  635, 638 n.5 (Mass. App. 2004) (explaining that no  right
to  review exists when case has proceeded to trial on the merits,
unless  summary judgment issue was on a different claim than  was

     26     E.g., Johnson Intl Co. v. Jackson Natl Life Ins. Co.,
19 F.3d 431, 434 (8th Cir. 1994).

     27    Glaros v. H.H. Robertson Co., 797 F.2d 1564, 1573 (Fed.
Cir.  1986) (quoting Switzerland Cheese Assn, Inc. v.  E.  Hornes
Market, Inc., 385 U.S. 23, 25 (1966)).

     28    Johnson Intl Co., 19 F.3d at 434.

     29     E.g., Chesapeake Paper Prods. Co. v. Stone &  Webster
Engg  Corp.,  51 F.3d 1229, 1235 (4th Cir. 1995); Black  v.  J.I.
Case Co., 22 F.3d 568, 571 n.5 (5th Cir. 1994).

     30    Black, 22 F.3d at 571 n.5.

     31     Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359
(9th Cir. 1987) (quoted as persuasive in Jarrett v. Epperly,  896
F.2d 1013, 1016 n.1 (6th Cir. 1990)).

     32    Holley v. Northrop Worldwide Aircraft Servs., Inc., 835
F.2d 1375, 1378 (11th Cir. 1988).

     33    Id. at 1377.

     34    Id. at 1378.

     35    Lind v. United Parcel Serv., Inc., 254 F.3d 1281, 1283-
84  (11th Cir. 2001).  In Chesapeake Paper Products Co., 51  F.3d
at  1235  n.8,  the  Fourth Circuit Court  of  Appeals  similarly
declined to follow Holleys fact-based bar, opting instead to join
courts  applying the broader rule barring all post-trial  appeals
of orders denying summary judgment.

     36     Watson v. Amedco Steel, Inc., 29 F.3d 274,  279  (7th
Cir. 1994).

     37    Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1318 (7th
Cir.  1995)  ([T]he  principle  that  an  order  denying  summary
judgment is rendered moot by trial and subsequent judgment on the
merits  is  intended for cases in which the basis for the  denial
was  that  the  party  opposing the motion had  presented  enough
evidence to go to trial.).

     38     Ruyle v. Continental Oil Co., 44 F.3d 837, 842  (10th
Cir. 1994).

     39    Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th
Cir. 1992).

     40    Ruyle, 44 F.3d at 842.

     41    Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130  (2d
Cir.  1999) (Based on our review of the case law in this circuit,
the  Federal  Rules  of Civil Procedure, the reasoning  of  other
circuits,  and principles of judicial economy, we  now  join  the
rising chorus of circuits that have concluded that such an appeal
will not ordinarily lie.).

     42     Rothstein v. Carriere, 373 F.3d 275, 283-84 (2d  Cir.
2004) (holding that a party need not make any motion at trial  to
preserve question whether district court erred as a matter of law
in  denying  summary judgment motion when disputed order  ignored
applicable state law).

     43    Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 149
(3d Cir. 1992).

     44    Id. at 149-50.

     45     Ondrusek  v. Murphy, 120 P.3d 1053, 1056 n.2  (Alaska

     46    Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d
654, 655-56 (Alaska 1991).

     47    Id. at 656.

     48    Id.

     49    Id. at 658.

     50    Id.

     51     Johnson v. Alaska State Dept of Fish & Game, 836 P.2d
896, 903-04 (Alaska 1991).

     52    Id.

     53    Id. at 904.

     54    Id. at 904 n.11.

     55    Id. at 900.

     56    Ondrusek, 120 P.3d at 1056 n.2.

     57    Johnson, 836 P.2d at 904 n.11.

     58    AS 08.18.151.

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