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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harris v. Ahtna, Inc. (09/26/2008) sp-6311

Harris v. Ahtna, Inc. (09/26/2008) sp-6311, 193 P3d 300

     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

RICHARD HARRIS, )
) Supreme Court No. S- 11769
Appellant, )
) Superior Court No. 3AN-01-11346 CI
v. )
) O P I N I O N
AHTNA, INC., AHTNA )
GOVERNMENT SERVICES ) No. 6311 September 26, 2008
CORPORATION, KEN JOHNS, )
PAUL TONY, and NEIL )
ANDERSON, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  William G. Royce, Law Office of
          William  G.  Royce, Anchorage, for Appellant.
          Patrick   B.   Gilmore  and  Christopher   J.
          Slottee,    Atkinson,   Conway   &    Gagnon,
          Anchorage, for Appellee Ahtna, Inc.   Michael
          C.  Geraghty and D. Elizabeth Hanner, DeLisio
          Moran Geraghty & Zobel, P.C., Anchorage,  for
          Appellee     Ahtna    Government     Services
          Corporation.   Samuel J. Fortier,  Fortier  &
          Mikko,  P.C.,  Anchorage, for  Appellees  Ken
          Johns, Paul Tony, and Neil Anderson.

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

          FABE, Chief Justice.
I.   INTRODUCTION
          Ahtna Government Services Corporation, a subsidiary  of
Ahtna, Inc., was organized in 1999.  Ahtna, Inc. held a fifty-one
percent  interest  in  Ahtna Government Services,  while  Richard
Harris held forty-nine percent.  As president of Ahtna Government
Services,  Harris  facilitated a  number  of  deals  between  the
company  and two other companies with which he had relationships,
Pacific  Native  Development Corporation and AEI Pacific.   After
Harris was terminated from Ahtna Government Services in 2001,  it
brought  suit  against  him  for breach  of  fiduciary  duty  and
rescission    of   the   stock   purchase   agreement.     Harris
counterclaimed  on  a  number of grounds, adding  claims  against
Ahtna,  Inc.,  several  Ahtna  directors,  and  Ahtna  Government
Servicess chief financial officer.  The trial court found against
Harris  and  awarded nearly $1 million in damages  and  attorneys
fees.   Harris appeals, arguing that the trial court  imposed  an
incorrect  burden  of  proof on him, that its  findings  of  fact
regarding several transactions were clearly erroneous,  and  that
it  improperly  admitted  an exhibit  at  trial.   Because  Ahtna
Government  Services  proved its claims by clear  and  convincing
evidence,  because  the trial courts factual  findings  were  not
clearly erroneous, and because the trial courts admission of  the
exhibit  was  not  an abuse of discretion, we  affirm  the  trial
courts decision in all respects.
II.  FACTS AND PROCEEDINGS
     A.   1999 Through Early 2001
          Ahtna, Inc. is a regional corporation created under the
Alaska  Native  Claims Settlement Act.  In the  spring  of  1999,
Darryl  Jordan,  then president of Ahtna, Inc., asked  Harris  to
join  the company in forming a new Ahtna, Inc. subsidiary,  Ahtna
Government   Services   Corporation.    Harris   agreed.    Ahtna
Government  Servicess ostensible purpose was to pursue government
contracts under the auspices of the United States Small  Business
Administrations Section 8(a) program.1  At this point, Harris was
also  closely  related  to  two other  companies.   Harris  owned
Pacific  Native Development Corporation, his wife, Sandra Harris,
was its president,2 and he was an officer, and at certain points,
president,  of AEI Pacific.  Pacific Native Development  assisted
section  8(a) firms in procuring government contracts,   and  AEI
Pacific was a section 8(a) contracting firm.
          On   May  27,  1999,  Ahtna  Government  Services   was
incorporated.   Ahtna,  Inc.  owned fifty-one  percent  of  Ahtna
Government Servicess shares and Harris owned forty-nine  percent.
Ahtna  Government Servicess organizational meeting  was  held  in
August  1999.   The  board consisted of five  members,  including
Jordan  as chairperson and Harris as president.  In the  two-year
period  between  Ahtna  Government  Servicess  incorporation  and
Harriss  termination, Harris engineered a number of transactions,
each  of  which  the trial court determined was self-dealing  and
unfair  to Ahtna Government Services, breaching Harriss fiduciary
duty   to   the  company.   Following  is  a  summary  of   these
transactions, based on the trial courts findings:
          1.   The Clear project
          AEI  Pacific was the general contractor for  a  roofing
job at Clear Air Force Base that began in the fall of 1999.  When
AEI  Pacific submitted its bid for the work in May of that  year,
Harris personally guaranteed the bonding for the contract, as did
Pacific  Native  Development.  By the time  it  was  awarded  the
contract,  AEI  Pacific  was  insolvent.   As  president  of  the
company, Harris understood AEI Pacifics financial condition.   In
November  1999  the  Clear  project  itself  was  in  substantial
financial  jeopardy,  due to significant  unpaid  bills  and  the
approaching  winter.  On November 3 Harris, as the  president  of
Ahtna  Government Services, signed a subcontract with AEI Pacific
committing  Ahtna Government Services to complete  all  remaining
work  on  the  project.   On November 30  Harris,  again  in  his
capacity  as  Ahtna  Government  Services  president,  had  Ahtna
Government  Services pay AEI Pacifics overdue  freight  bills  so
that  materials  could  be  delivered to  complete  the  project.
Despite   the   extremely   cold   weather,   and   against   the
recommendation of an AEI Pacific employee who had visited the job
site, Harris pushed the crew to complete the project through  the
winter.   To postpone the work until spring would have  triggered
liquidated  damages against AEI Pacific, for which  Harris  would
have been personally liable  AEI Pacific was insolvent and Harris
had  guaranteed  the bond.  Ahtna Government Services  ultimately
incurred  a  $191,000 loss on the project, which the trial  court
awarded as damages to Ahtna Government Services.
          2.   The Kulis project
          On  the  same  day that he authorized transfer  of  the
Clear  project,  Harris,  in  his capacity  as  Ahtna  Government
Services   president,  signed  a  subcontract  committing   Ahtna
Government  Services to complete another AEI Pacific project,  at
Kulis  Air  National Guard Base.  Due to AEI Pacifics insolvency,
the  Kulis project was, like the Clear project, plagued by unpaid
debts.   The Kulis project was independently bonded, but  $48,000
of  losses  could  not  be collected.  Ahtna Government  Services
therefore incurred a $48,000 loss on the project, which the trial
court awarded as damages to Ahtna Government Services.
          3.   The Pacific Native Development office space
          Pacific Native Development was committed to a lease  of
office space, a portion of which Harris directed Ahtna Government
Services  to  sublease.  At some point Ahtna Government  Services
assumed  the entire lease.  The trial court found that  the  rent
Ahtna  Government Services paid was excessive because the company
did  not  need  more than one-third of the space and  that  Ahtna
Government  Services was overcharged by at least  $104,000.   The
trial court awarded these damages to Ahtna Government Services.
          4.   The cars
          Ahtna  Government Services rented two vehicles, a  Land
Rover  and a Ford Expedition, from Pacific Native Development  at
Harriss  behest.  Ahtna Government Services paid $800  per  month
for  rental of the former and $1,100 per month for rental of  the
latter.  The trial court found that the reasonable monthly rental
rates for these vehicles were $300 and $350, respectively.  Ahtna
Government  Services  later purchased these vehicles  at  Harriss
behest.   It  paid  $28,585 for the Land Rover, which  the  trial
court  valued  at  $23,185, and $31,150 for the  Expedition,  the
Kelly  Blue  Book  value of which was $18,250.  The  trial  court
valued  the total overpayment on the cars at $25,400 and  awarded
that amount to Ahtna Government Services.
          5.   The   billing   of   Pacific  Native   Development
               employees time
          Ahtna Government Services was billed for Pacific Native
Development  employees time purportedly spent  working  on  Ahtna
Government Services projects. Pacific Native Development did  not
submit  time  sheets  to  Ahtna Government  Services  or  provide
details  about  these charges.  Harris approved  the  charges  to
Ahtna   Government   Services  for  Pacific  Native   Development
employees  time.   Though  he acknowledged  that  Pacific  Native
Development  employees kept time sheets, and that he  had  likely
saved  the  time  sheets,  Harris  could  not  account  for   the
whereabouts  of  these  documents and did not  produce  them  for
trial.    But   Christopher  Smith,  a  former   Pacific   Native
Development employee and later the president of Ahtna  Government
Services,   retained  personal  copies  of  his  Pacific   Native
Development  time  sheets.   A comparison  of  the  hours  Harris
charged Ahtna Government Services for Smiths work with the  hours
recorded  on  the  time  sheets that Smith retained  revealed  an
overcharge  of  197  hours.  The trial court inferred  from  this
demonstrated  overcharge  and Harriss  failure  to  produce  time
sheets  that Harris inflated other employees time as  well.   The
trial court awarded Ahtna Government Services the $50,968.13 that
it requested for these unsubstantiated charges.
          6.   The  use  of Ahtna Government Services  funds  and
               employees
          Harris directed Ahtna Government Services employees  to
work  on  his  personal boat and used Ahtna  Government  Services
funds  to  pay  his attorneys fees in personal  litigation.   The
trial  court  awarded  Ahtna Government Services  $10,472.21  for
these charges.
          7.   The leases
          The  day  before his termination, Harriss wife obtained
draft  leases  for  equipment and furniture in  Ahtna  Government
Servicess  Anchorage, Hawaii, and California offices, and  Harris
backdated invoices charging Ahtna Government Services $46,685 for
the  rentals.  When an Ahtna Government Services employee refused
to  sign  the  backdated leases, Harris himself  signed  them  on
behalf  of Ahtna Government Services and Harriss wife signed  for
Pacific  Native  Development.  Notably, two of  the  leases  were
backdated to July 1999, which preceded Ahtna Government Servicess
organizational meeting.  The trial court found that these  leases
overcharged  Ahtna  Government Services by  $40,000  and  awarded
Ahtna Government Services that amount.
     B.   2001 Through December 2004
          In  early  2001  Ahtna, Inc. fired Darryl  Jordan,  the
company president who had invited Harris to join in forming Ahtna
Government  Services.  Ken Johns replaced Jordan as president  of
Ahtna,  Inc.  in  April  of that year.  In March  Neil  Anderson,
Ahtna,  Inc.s new chief financial officer, reviewed Ahtna,  Inc.s
books  and  found accounting irregularities in many subsidiaries.
In May 2001 Harris was fired.
          On  October  19, 2001, Ahtna Government Services  filed
suit  against  Harris  for  breach  of  fiduciary  duty  and  for
rescission  of the stock purchase agreement.  Harris answered  in
December  and  filed  counterclaims and a  third-party  complaint
against   Ahtna,   Inc.  on  thirteen  counts:    actual   fraud,
constructive fraud, conversion, wrongful termination in violation
of  public policy, defamation, defamation to business reputation,
intentional  and  negligent  infliction  of  emotional  distress,
breach  of contract, intentional and negligent misrepresentation,
breach  of  the  covenant of good faith  and  fair  dealing,  and
tortious  interference.  Harris amended his third-party complaint
in  February  2002 to add a number of defendants,  including  Ken
Johns  (president  and CEO of Ahtna, Inc.),  Laura  Gould  (vice-
president  and CFO of Ahtna Government Services), Paul  Tony  and
Neal Anderson (Ahtna, Inc. board members), and John Does I-X.3
          On  September 11, 2003, Ahtna Government Services filed
a  motion requesting that the court place the burden on Harris to
prove  that  the transactions were reasonable under AS 10.06.478,
the  statute governing related party transactions.   A  few  days
later, Ahtna, Inc. joined that motion and also filed a motion for
summary  judgment  on Harriss non-compliance with  AS  10.06.478.
Harris opposed these motions in early October.
          On  October  30  the trial court issued  its  order  on
burden of proof.  It ruled that Harris was required to prove by a
preponderance  of the evidence that the transactions  were  fair,
and  that  a majority of Ahtna Government Servicess disinterested
directors  knew  the  material  facts  of  the  transactions  and
approved them.  If he could not prove the former  the fairness of
the  transactions  the matter would be resolved  against  Harris.
If  he  could not prove the latter, Harris was required to  prove
the   fairness  of  the  transactions  by  clear  and  convincing
evidence.  The trial court denied Ahtna, Inc.s motion for summary
judgment.
          The  case  advanced to a bench trial.  The  proceedings
lasted  from November 3, 2003 to November 13, resumed on December
8,  and concluded on December 12.  On August 16, 2004, the  trial
court entered an oral decision into the record.  It found against
Harris  on  all claims and directed Ahtna Government Services  to
prepare  findings of fact and conclusions of law for its  review.
Harris  filed objections to Ahtna Government Servicess proposals,
but  the trial court overruled Harriss objections and adopted all
of  Ahtna  Government Servicess proposed findings except  certain
findings concerning Jordan.  The trial court denied Ahtna,  Inc.s
motion  for enhanced attorneys fees, awarding the company $39,072
as  calculated under Alaska Civil Rule 82(b)(2), but  it  granted
full  reasonable attorneys fees to Johns, Tony, and Anderson  due
to  the  vexatious  nature of Harriss claims against  them.   The
final  judgment  against  Harris in  favor  of  Ahtna  Government
Services  was $802,753.44; the judgment in favor of  Ahtna,  Inc.
was  $58,647.31;  and the judgment in favor of Johns,  Tony,  and
Anderson was $91,929.24.  Harris appeals.4
     C.   December 2004 to Present
          In April 2005 Harris filed for bankruptcy.  A notice of
          bankruptcy conversion was filed in this action on September 8 of
that year, and this appeal was stayed on September 30, 2005.  The
stay  was  modified  in  January 2007 to  allow  this  appeal  to
proceed.
III. STANDARD OF REVIEW
          We  employ the clearly erroneous standard to  review  a
lower  courts  factual  findings.5   Factual  findings  will   be
reversed  only if we are left with a definite and firm conviction
that  a mistake has been made after considering the record  as  a
whole.6  A lower courts decision to admit or exclude evidence  is
reviewed for abuse of discretion and will be reversed only if the
error  affected the substantial rights of a party.7  We review  a
lower  courts allocation of the burden of proof de novo, adopting
the  rule  of law that is most persuasive in light of  precedent,
reason, and policy.8
IV.  DISCUSSION
     A.   Harriss Argument Regarding the Burden of Proof Fails.
          The trial court determined that under AS 10.06.478, the
statute governing related party transactions, Harris was required
to  prove   the  transactions in question  were  proper,  and  it
concluded that Harris failed to do so.  Harris contends that  the
deals  were  part  of  a larger pre-incorporation  agreement  not
subject to the requirements of AS 10.06.478,  and that the  trial
court therefore improperly placed the burden on him to prove  the
transactions were fair rather than on his opponents to prove  the
transactions  were  unfair.  But as the trial  court  recognized,
[t]he  proper  allocation of burden of proof  on  this  issue  is
irrelevant  given  its  express  finding  that  Ahtna  Government
Services  established the transactions were unfair by  clear  and
convincing evidence.  Thus, even assuming that Harris is  correct
and  that the trial court should have placed the burden on  Ahtna
Government Services to affirmatively prove the transactions  were
unfair, Ahtna Government Services has already met this burden.
     B.   The  Trial Courts Factual Findings Regarding the  Clear
          and  Kulis Projects and the Rental of Office Space Were
          Not Clearly Erroneous.
          
          Harris   contends   that  the  trial  courts   findings
regarding the  Clear and Kulis projects and the rental of Pacific
Native Development office space to Ahtna Government Services were
clearly  erroneous and present no basis for liability or  damages
on  his  part. He further complains that the trial court  adopted
Ahtna  Government  Servicess proposed  findings  of  fact  nearly
verbatim   and  characterizes  the  courts  findings   as   stark
pronouncements.  Harriss arguments lack merit.
          The  trial  court  did  not err in requesting  proposed
findings of fact and conclusions of law from counsel.  As  Harris
acknowledges, Alaska Civil Rule 78 specifically provides for this
practice.9   Nor  did  the  trial court  err  in  adopting  those
findings  and conclusions.  As we stated in Industrial  Indemnity
Co.  v.  Wick, Rule 78(a) was not intended to delegate to counsel
the courts duty of finding the facts.  A trial court is, however,
entitled  to adopt findings and conclusions prepared by  counsel,
so long as they reflect the courts independent view of the weight
          of the evidence.10  That the trial court considered the findings
before  adopting  them  is clear from its  deletion  of  material
related   to  Jordan  in  Ahtna  Government  Servicess   proposed
findings.
          Harriss suggestion that the trial courts findings  were
stark  pronouncements, lacking support, is also unavailing.   The
only case Harris cites in support of this proposition, Mackie  v.
Chizmar,11   is   inapposite.   In  Mackie,  the  plaintiff   was
misdiagnosed  with HIV and sought $150,000 in  damages  from  the
doctor  who had misdiagnosed her.12  The trial court awarded  her
$15,000.13   It provided no rationale for this decision,  stating
only  the following:  The court concludes that the sum of $15,000
shall  be  awarded to Savitri Chizmar for compensatory damages.14
Neither of the parties suggested this amount.15  With no rationale
to  support  the award, we remanded for further findings.16   But
here, the trial court made detailed findings about the Clear  and
Kulis  projects and the rental of office space, and its rationale
is apparent.  Furthermore, it accepted Ahtna Government Servicess
proposed  findings  on these issues, which  included  a  detailed
recitation of the evidence relied on, complete with citations  to
the record.  Harriss argument is without merit.
          Harris  also  argues  that the  trial  courts  findings
regarding Pacific Native Developments rental of office  space  to
Ahtna  Government  Services and regarding  the  Clear  and  Kulis
projects were clearly erroneous.  To support his argument, Harris
cites to his own testimony, to Jordans testimony, and to exhibits
that  Harris himself constructed.  But the trial court explicitly
found that Harris and Jordan were not credible witnesses.  And to
the  extent  that  Harris cites the testimony of other,  credible
witnesses,  he  presents  at  best an  alternative  view  of  the
evidence.   We reverse factual findings only if they are  clearly
erroneous,  and  [c]lear  error is  not  demonstrated  by  merely
showing  a conflict in the evidence.17  Viewing the record  as  a
whole,  we are not left with a definite and firm conviction  that
the  trial  court erred in its findings regarding the  rental  of
office space to Ahtna Government Services and the Clear and Kulis
projects.  These findings are not clearly erroneous.
     C.   The Trial Court Did Not Err in Admitting Exhibit 79.
          Harris  argues that the trial court erred in  admitting
Exhibit  79,  Christopher Smiths time sheets  from  his  work  at
Pacific  Native  Development.  Harris contends  that  these  time
sheets were inadmissible on grounds of unfair surprise and unfair
prejudice because they were not produced before trial.  The trial
court  noted  that the time sheets were not from the  records  of
Ahtna  Government  Services,  the  party  from  whom  Harris  had
requested discovery, but rather from Smiths personal records, and
it ruled that the time sheets were admissible.
             Pacific  Native  Development, Harriss  wholly  owned
company,  charged  Ahtna Government Services for  Pacific  Native
Development  employees  time ostensibly spent  working  on  Ahtna
Government Services projects.  Harris then approved the bills  in
his  capacity  as president of Ahtna Government Services.   Ahtna
Government  Services claimed that Harris breached  his  fiduciary
duty to the company through self-dealing transactions that caused
          Ahtna  Government Services to pay for non-existent  and
unsubstantiated expenses, unreasonably benefiting other  entities
controlled by Harris.  Harris did not produce the Pacific  Native
Development time sheets for which he authorized payment by  Ahtna
Government Services because he claimed he did not know where they
were.
           At  trial, Harris called Christopher Smith,  a  former
Pacific  Native Development employee and then-president of  Ahtna
Government Services,  to testify about work he had done for Ahtna
Government  Services  as a Pacific Native  Development  employee.
When Harris deposed Smith five months earlier, he asked Smith the
following  question:  Item 7, AGSC payments to PNDC for  services
and  costs,  the amount of the loss claimed is $62,900.   Do  you
know anything about that?  Smith replied that he had seen some of
the  accounting  documents relating to it but did  not  have  any
specific information on the details.  Harris asked whether  Laura
Gould, Ahtna Government Servicess chief financial officer,  would
be  better able to answer questions on that topic, and Smith said
yes.
          Shortly  before  he  testified, Smith  found  some  old
Pacific  Native  Development time sheets in his personal  records
and  faxed  them  to Ahtna Government Servicess  counsel.   Smith
stated  that  he  had not thought about looking for  them  before
because  they  were Pacific Native Development  records,  and  he
assumed  that  Harris had them and would have  produced  them  to
Ahtna  Government Services.  Ahtna Government Services  moved  to
enter  the time sheets as Exhibit 79 during its cross-examination
of Smith.  Harris requested five minutes to review the documents,
which  was  granted.  He also examined Smith on voir  dire  about
them.   Harris  then  objected to the  documents,  claiming  they
should have been produced before trial under Alaska Civil Rule 26
and were inadmissible for unfair surprise.  The trial court noted
the  documents came from Smiths personal records, not from  Ahtna
Government Servicess records, and admitted the exhibit.
          On  appeal,  Harris argues that the time sheets  should
have  been  excluded  on grounds of unfair prejudice  and  unfair
surprise because they were not produced before trial and  because
he  did  not  have  an  opportunity to independently  test  their
veracity.   Alaska  Rule of Evidence 403 provides  that  relevant
evidence may be excluded if its probative value is outweighed  by
the  danger  of  unfair prejudice, confusion of  the  issues,  or
misleading  the  jury.  Here, the probative  value  of  the  time
sheets  is  high because they go to the heart of Ahtna Government
Servicess  breach of fiduciary duty claim.  But  Harris  contends
that Smiths statement claiming he had no specific information  on
the  details of the unsubstantiated billing issue, which he  made
during  his  deposition,  was wholly inconsistentwith  his  trial
testimony regarding the time sheets, and Harris argues that  this
unfairly prejudiced him.
          Harriss  argument  is unpersuasive  because  Smith  was
unaware  at  the time of his deposition that he had  time  sheets
that  could be important to the case.  Although Harris emphasizes
that  he  did not have the opportunity to independently test  the
veracity  of  the  time sheets, at trial he  requested  only  the
opportunity  to  examine Smith on voir dire and five  minutes  to
examine  the  documents before they were admitted,  and  both  of
these   requests  were  granted.   Harris  did  not   request   a
continuance of any greater duration.
          Harris  suggests that he was unfairly surprised by  the
time  sheets  because they were not produced before  trial.   But
Harris cannot fault Smith for a failure to produce; Smith was not
a  party  to the case and was therefore not obligated to  produce
documents  under Alaska Civil Rule 26.  To the extent  Harris  is
arguing  that  Ahtna  Government Services  improperly  failed  to
produce the documents before trial, that argument is unpersuasive
because Ahtna Government Services did not receive them until  the
night  before  they were introduced.  Moreover, the  time  sheets
were  Pacific  Native  Development documents  that  had  been  in
Harriss  possession; according to his testimony, he had misplaced
them.18
          Our decision in Marron v. Stromstad19 is instructive on
Harriss  unfair  surprise  argument.  In  Marron,  the  plaintiff
claimed  that she was injured in a car accident.20  Her  treating
physician, Dr. White, examined her but refused to operate on her.21
She  then  saw  another  doctor who  performed  a  discogram  and
suggested surgery, which was later done.22  At trial, Marron filed
a  motion  in  limine  to  strike Dr.  Whites  expert  deposition
testimony,  but the trial court denied her motion.23   After  the
jury  found that Stromstads actions were not the legal  cause  of
Marrons  injury,24 Marron appealed the admission  of  Dr.  Whites
testimony,  claiming that Stromstad had not  provided  an  expert
witness  report  and  that  she was  unfairly  surprised  by  the
testimony.25  But because it was foreseeable that Stromstad would
explore  this  issue with Dr. White, because Marron knew  exactly
what  techniques  Dr.  White did and did  not  use,  and  because
excluding  the  testimony  would  have  presented  an  inaccurate
picture  of  what  happened, we concluded  that  Marron  was  not
unfairly surprised and affirmed admission of the evidence.26
          Each  of these factors is present here as well.  Harris
was  aware  of Ahtna Government Servicess claim about  fraudulent
charges benefiting other entities in which he had an interest, so
it  was  foreseeable that Ahtna Government Services would explore
this  issue.   Harris  approved the charges to  Ahtna  Government
Services  for Pacific Native Development employees time,  and  in
fact  Smiths  time  sheets were copies of  documents  Harris  had
actually  held in his possession, so he understood  what  was  in
them.   And  excluding the time sheets would  have  presented  an
inaccurate picture of what happened.
          Finally, the trial court granted Harriss request for  a
brief  period to examine the documents and voir dire the  witness
about them.  Harris made no other request for additional time  to
examine  the  documents or for a continuance of the  trial.   The
trial court did not abuse its discretion in admitting Exhibit 79.
V.   CONCLUSION
          We AFFIRM the trial courts decision in all respects.
_______________________________
     1     This  program  is  designed to assist  eligible  small
disadvantaged  business  concerns [to] compete  in  the  American
economy  through  business development.  Lexington  Mktg.  Group,
Inc.  v.  Goldbelt  Eagle, LLC, 157 P.3d 470, 471  (Alaska  2007)
(quoting 13 C.F.R.  124.1 (2006)).

     2     Mrs.  Harriss  testimony at trial suggested  that  she
became president of Pacific Native Development at Harriss request
because  the  Ahtna, Inc. board had told Harris he could  not  be
president  of  Pacific  Native Development and  Ahtna  Government
Services  at  the  same time, and because [t]here  was  no  other
employee in the office to become president.

     3     This amended third-party complaint included a count of
specific  performance regarding the put-and-call option provision
of  the Ahtna Government Services shareholders agreement; in this
count,  Harris declared that an impasse between shareholders  had
arisen.   In  a  separate decision, the superior  court  required
Harris  to deliver his Ahtna Government Services shares to Ahtna,
Inc.  for a certain consideration under this put-and-call  option
provision.   Harris v. Ahtna, Inc., 107 P.3d 271, 273-74  (Alaska
2005).  We later reversed that ruling.  Id. at 279.

     4     We do not review the trial courts dismissal of Harriss
defamation  and  interference with business relationships  claims
against Johns, Tony, and Anderson.  Though Harris included  these
claims  in  his points on appeal, he did not substantively  brief
them  and  they  are therefore deemed waived.   State  v.  ONeill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (Failure to
argue a point constitutes an abandonment of it.).

     5    Wyller v. Madsen, 69 P.3d 482, 485 (Alaska 2003).

     6    Id.

     7    Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).

     8    Flynn v. E.I. du Pont de Nemours & Co., 988 P.2d 97, 98
(Alaska 1999).

     9    Alaska R. Civ. P. 78(a).

     10     680  P.2d 1100, 1108 (Alaska 1984) (internal citation
omitted).

     11    965 P.2d 1202 (Alaska 1998).

     12    Id. at 1207.

     13    Id.

     14    Id. (quotations omitted).

     15    Id.

     16    Id.

     17    Preferred Gen. Agency of Alaska, Inc. v. Raffetto, 391
P.2d 951, 953 (Alaska 1964).

     18     The  trial court found that Harris was not a credible
witness.

     19    123 P.3d 992 (Alaska 2005).

     20    Id. at 996-97.

     21    Id. at 996, 1000.

     22    Id. at 996.

     23    Id. at 997.

     24    Id.

     25    Id. at 1000.

     26    Id. at 1000-01.

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