3-D & Co. v. Tew's Excavating, Inc.
258 P.3d 819
Alaska2011Background
- Contract dispute between 3-D & Co. and Tew's Excavating arising from the Scenic View Subdivision road project in Matanuska-Susitna Borough.
- Written August 14, 2006 contract set for Foothills Boulevard and Range View Drive, but gravel sourcing and three inch minus processing responsibilities were ambiguous.
- Parties pursuedextrinsic evidence to interpret the contract; Borough specifications and grading requirements affected duties.
- Superior Court found a breach limited to certain aspects (e.g., 24-foot width) with damages uncertain, applying substantial performance to award partial damages.
- Allegations included misalignment about cul-de-sac vs. T-intersection, contract duration, and the Borough’s potential acceptance of substitutions; Derr’s lien and post-trial procedures shaped the appeal.
- Court affirmance of the superior court’s rulings on interpretation, damages, and liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contract meaning determined with extrinsic evidence ok? | Derr: contract unambiguously places gravel responsibility on Tew. | Tew: contract ambigious; extrinsic evidence valid. | Yes; extrinsic evidence properly used to resolve ambiguity. |
| Standard of proof for contract modification or reformation? | Derr: reforming implied by phrase additions requires clear and convincing proof. | No reform; no mutual mistake; preponderance suffices. | Preponderance of the evidence applied. |
| Did Tew materially breach by not providing three inch minus gravel? | Derr: failed gravel provision constitutes material breach. | Ambiguity meant responsibility not clearly on Tew. | No material breach; Tew met contractual requirements as interpreted. |
| Fixed price vs end-result contract for Foothills Boulevard? | Price should be per-foot as stated in initial page. | Inconsistency resolved to fixed price by Terms of Payment. | Contract interpreted as fixed price. |
| Did Derr assent to a T-intersection instead of a cul-de-sac? | Evidence shows no assent to cul-de-sac; T-intersection allowed. | Derr disputes assent from words/acts. | Derr assented to T-intersection; substitution likely acceptable. |
Key Cases Cited
- Alaska N. Development v. Alyeska Pipeline Co., 666 P.2d 33 (Alaska 1983) (end-result vs. performance-based liability considerations)
- Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188 (Alaska 1975) (end-result contract concept guidance)
- Froines v. Valdez Fisheries Dev. Ass'n, Inc., 75 P.3d 83 (Alaska 2003) (extrinsic evidence permissible in contract interpretation)