*1 rеntal doubling over automatic automatically doubledthe has [The State] however, period appeal, is not rea- appeal an a tenant seeks stakes when sonably these ends. tailored to achieve entry forcible judgment adverse [a discrimina- action. The and detainer] appeal his and this rehear- Throughout pay could poor, who against tion objection ing, has made no Modrok cannot appeal an hut pending rent their posted requirement that a be double bond bond, obvi- post particularly is double apрeal. a Because condition matter, ap- them, practical For as a ous. raised, rul- we limit our has not been issue foreclosed, matter how meri- peal is no payment pro- ing case the double may The non- be. torious their visions of AS 09.45.080. Our decision entry and indigent modified, detainer] Opinion [forcible No. 1002 is by a substan- appellant is confronted also case is remanded by no other appeal faced tial barrier to owing of the amount a determination Oregon. The discrimi- litigant in civil pre- deducted from the bond appellees en- against the nation class appeal. [forcible viously filed arbitrary appellants is try and detainer] irrational, the double-bond Equal . . . violates quirement 78-79, at U.S.
Protection Clause.
876,
S.Ct. was the precise Lindsey issue but, bond,
validity of double under decision, rent payment of double the Appellant, VALDEZ, CITY OF judgment is also appealed affirmance of v. parties urge us to avoid foreclosed. Both COMPANY, a VALDEZ DEVELOPMENT construing the ruling by a constitutional partnership consisting Jerry J. a award to not demand double statute McCutcheon, al., Appellees. et require only payment of reasonable rent- However, plain reading als and costs. COMPANY, а VALDEZ DEVELOPMENT than that permits other conclusion partnership consisting Jerry J. Mc al., Cross-Appellants, Cutcheon, et payment required, double because creates, statute with affirmance below, duty bond sure-
judgment on the VALDEZ, Cross-Appellee. CITY OF pay ties to the rental value over twice 1905, Nos. 1922. appeal.5 Supreme of Alaska. Court therefore hold that com 5, June 1974. rental manding payment of twice the value property occupied ap a defendant pealing judgment an forcible adverse
entry and detainer action AS 09.45.080 protection guarantees equal
violates Alaska Constitut United States may protect a property
ions.6 The state appeal by during loss against
owner payment on
requiring an bond actual rent are related to
affirmance which An damage suffered. specific
accrued XIV; Oregon Supreme art. amend. Alaska Const. held U.S.Const. 5. The Court Ore. pay required double 1, § Rev.Stat. 105.160 § Spencer, Or. ment. Scales v. (1967). *2 plan and further providing a completion deadline for The four addi- construction. tional lots bid this time were claimed previously to have been sold, they form another litigation. *3 Development placed
Valdez later bids on city 15 more lots which the accepted, sub- ject to the determination that no conflict Subsequently, city existed. de- when termined that the previously lots had been sold, Development Valdez was notified that rejected. Asserting bids were it was defrauded, Development Valdez filed a complaint alleging wrongful withhold- ing of contracts for the 15 lots in question.1 City of Valdez counterclaimed requesting the immediate of the forfeiture previously conveyed by city lots Development, Valdez alleging bad faith and anticipatory breach Valdez Devel- opment. Development Valdez sepa- then filed a Thorsness, Jacobus, Hughes, Kenneth P. complaint alleged rate it in which it had
Lowe, Clark, Anchorage, Gantz & for damaged by city’s beеn counterclaim. appellant cross-appellee. and specifically, Development More Valdez al- Cranston, Anchorage, ap- Charles K. for leged that the counterclaim constituted a pellees cross-appellants. titles, prevented cloud on its it from ob- taining financing, and constituted an act of RABINOWITZ, Before J., and C. CON- prosecution malicious on the of the NOR, BOOCHEVER, and FITZGER- city. The eventually counterclaim was dis- ALD, JJ. prejudice missed without in January of but this time the weather made OPINION impossible. construction Valdez Con- RABINOWITZ, Chief Justice. struction of the Trans-Alaska The issues arise from a enjoined April 1970,-prior to the next realty contract for sale of which was season, as a construction result of which city entered into between the market de- Valdez was Development Company. stroyed, financing became unavailable carrying Proj- again, In out an Urban Renewal Valdez Devel- opment auspices delayed. ect under the Alaska State further In December Housing Authority, city city of Valdez ac- of 1971the title to moved have cepted bids on 40 lots from Valdez 36 lots revested in it to the company’s Devel- due opment and company then sold to the 36 failure to meet its contractual construction May city In city’s lots. 1969 the executed deadlines. Trial was on the held suit contracts Development’s 36 lots which contained to foreclose and Valdez suit stipulations providing prosecution. superior to when Valdez for malicious development Development grant had submit a city court refused to agreed question 1. Valdez dismiss of these from this suit at the lots time of trial. IgO enemy, acts the Federal foreclosure, the public extended the Gоvernment, party,
deadlines,
acts of the other
denied Valdez
floods,
fires,
epidemics, quarantine
In ad-
prosecution.
damages for malicious
strictions, strikes,
freight embargoes,
dition,
court ordered
the lower
unusually
delays of
last
severe weather or
convey
Development the
to Valdez
causes;
due to such
bid
subcontractors
original
of the
40 lots
lots
four
pro-
and intent
being
had
Development as the
now
that in the
vision
event
occurrence
title to these lots. Neither
regained
time or
delay,
such
Both
attorney’s fees.
was awarded
оbligations
times
appealed
from the
court’s
have
prepa-
Agency
respect
with
judgment.
redevelopment
Property
ration of the
first
as
reach the
of Valdez’s
Redeveloper
respect to con-
that it was
for the
sertion
error
*4
as the
Improvements,
of the
struction
deny
it
as to
of
foreclosure
33
be,
may
shall be extended
for
original
undisputed
40 lots.2 It is
deter-
delay
as
period of
enforced
on these
not com
lots was
Provided, That
by the Agency:
mined
completed
or
menced
within the contractual
pro-
party seeking
thе benefit of
Nevertheless,
superior court
deadline.
shall,
ten
within
visions
Section
Development’s perform
held that Valdez
any
days
of
beginning
after the
(10)
ance was excused.
delay,
first notified
enforced
have
such
Throughout
writing,
litigation
party
thereof
Valdez Devel-
other
opment
thereof,
has
and re-
delay
contended that
cause or
its
of the
causes
performance is
quested
period
excused under Section
an extension
707
of
for
added)
(emphasis
delay,
of
Valdez,
its contract
with the
of
enforced
reads
which
as follows:
specifically,
Develop-
More
it is Valdez
period
ment’s
that the
for which
contention
purposes
For the
any
provi-
of the
pro-
injunction
the federal district court’s
agreement,
sions
neither
Secretary
hibiting the
of the Interior from
Agency nor the
as
Redeveloper,
the case
permit
issuing
for
of the
be,
may
any
interest,
nor
successor
pipeline
consti-
Trans-Alaska
was in effect
of,
shall be considered in breach
or de-
delay
tutes a
of enforced
under
in, its obligations
fault
respect
provisions of Section 707.3
preparation
Property
of the
for rede-
velopment, or the beginning and comple-
responds
The
this con-
tion of construction
Improve-
by arguing
tention
con-
Section
ments,
progress
thereto,
in respect
language
justify
tains no
which would
the event
per-
characterization of
non-issuance
of enforced
such obligations due to un-
pipeline permit
delay,
formance
an enforced
beyond
causes
its control and
simply
provide
foreseeable
Section 707
does
without its
including,
negligence,
contingency.
such
argues
The
fault
to,
but not
God,
restricted
act of
acts of
it
housing
wanted
constructed
regardless
original
longer
Three lots of the
bid are no
Sons,
State,
in Merl F. Thomas
Inc. v.
dispute
because
(Alaska
recently
has
1964),
P.2d 76
and more
completed
since
some
Corp.
construction on
Chugach
Ass’n,
those lots.
in Northern
Elec.
remaining
subject
The
(Alaska
four
remedy
lots are the
1974).
P.2d 76
The usual
aspect
city’s appeal.
another
impossibility
performance
when
is dem-
onstrated
to a
is rescis-
contract
In its brief Valdez
characterizes
sion of
contract.
how-
Section 707
recognition
Sectiоn
provides
707 as a contractual
remedy
ever
for a contractual
of ex-
impossibility
the doctrine of
tending
performance
timely
or commercial
the time for
when
frustration
contracts.
temporarily
impos-
The doctrine
is rendered
impossibility
recognized by
has been
this court
sible
under
terms of the section.
pipeline permit
delays
whether the Trans-Alaska
due to
resulting
from such
was issued.
“including,
causes
not restricted to
but
acts of the
government
federal
agreed
The
with the con-
.
embargoes
.
.
.
strikes
.
.
...”
Development.
tention of
The low-
er сourt noted that
at the time the The
section is
formed,
provide
contract was
commencement
extensions of construction dead-
pipeline
construction of the
lines
delays
Trans-Alaska
when enforced
make construc-
antic-
tion impossible.
events,
was believed to be imminent. It was
lists
section
ipated
start
construc-
occurrence of which are not attributa-
approximately
any
bring
tion would
new ble to
shortcoming
fault or
of the de-
veloper
families
prevent
to Valdez
whom there was
which would
de-
housing. Subsequently,
veloper
аvailable
fed-
timely compliance
from
with the
n contract
provisions.5
barring pipeline
eral
construc-
issued, thereby
po-
tion was
destroying this
specific
clause
refer-
making
tential market for new
to acts of
ring
government
the federal
virtually impossible
any company
plain
meaning of
language
includes
obtain
financing for construction.4
injunctions.6
judicial
However, decisions
superior court considered
these facts
that we have
which
per-
discovered
concluded that
Section 707 was intended
formance under a
on this ground
contract
timely performance
excuse a
generally involved
situations
which the
resulting
from
*5
injunction
judicial
or
itself is
order
the di-
government,
acts of the federal
of
acts
performance.7
rect cause of
in
delay
the
the other party,
emergency
and other
The
injunction
district court’s
did not di-
type
exigencies
matters or
which could rectly prohibit housing
in
construction Val-
not reasonably
anticipated
have been
as
dez,
injunction
and so the
standing alone
specific
I
occurrence thereof.
would not
timely performance by
feel
Judge
that
Hart’s decision [enjoin-
Development
Valdez
under Section 707.
ing the
falls
pipeline]
construction
contemplat-
within
category
the
that was
While the
referring
clause
by
ed
the
at the
.
time.
.
.
acts of the federal government does not
directly apply
seem to
to the circumstances
above,
provides,
Section
as
stated
bar,
of the case at
think that
the
we
timely
performance will be excused
required
Develop-
6. An
of a
financing
by
act
federal
is also an
of
act
4. The
Valdez
government.
the
$1,200,000
federal
The Restatement
of
ment
be
was stated to
part:
(1932) provides
impossible
Contracts
§
fol-
shown at
trial
to be
to obtain
duty
duty
lowing
injunction.
A contractual
or a
to make com-
the
issuance of
federal
pensation
discharged,
is
the absence of
showing
contrary
circumstance
either a
in-
5. Sections 704 and 705 of the
between
contract
contributing
city
or
tention
fault on the
of
of Valdez
Valdez
subject
person
duty,
per-
provide
system
where
a
title in
revestiture of
prevented
subsequently
pro-
city
by
formance is
resale
devel-
followed
to a second
(b) by
judiciаl,
oper
.
a
hibited
.
.
ex-
should
Valdez
default
order
obligation.
ecutive
administrative
made with
are
construction
The
sections
authority
by
judge
due
a
or other officer
premise
in-
founded on the
while
(emphasis
may
developer
United States.
.
.
.
there
dividual
be in default
added)
step
developers
are
are
other
who
able
is,
course,
agreement.
the issue
addressed to
Section
in and continue the construction
impossibility
a
hand,
contract.
Section
other
concerned
on the
is
relationship
impossibility
doc-
between
an
which there is
with thоse situations
supra
is discussed
trine and
is not
which
attributable
note 3.
pre-
particular
generally
developer, and which
development
any developer
g.,
See,
cludes
for the
e.
Kuhl v.
Dist. No. 76 of
School
period
Wayne County,
delay.
155 Neb.
N.W.2d 746
(teacher’s
(1952)
in-
followed
an
operation
school).
junction prohibiting
dispute
it had
encompassed
does
actual
are
present circumstances
pipeline injunction,
knowledge of the
but
gener-
restricted to”
.not
“including,-but
knowledge
asserts that it did not have
707.8
The federal
language of Section
al
consequences
injunction
had
prevent construction
injunction did
any
Development, and that in
made
which
turn
pipeline,
Trans-Alaska
hous-
formal written
financing
requires
Section 707
construct
securing
financing
from all
found
impossible. With
notice.
ing in Valdez
put on
un-
unavailable,
Development was
the circumstances that
injunction
requirements
time
notice that one effect of the
comply with
able to
causation, the
was to
prohibiting pipeline
In terms
in the contract.
by Judge Hart
impossible the
financ-
issued
render
attainment of
injunction
federal
prox-
by potential
actual and
in the
ing
developers
both an
can
be viewed
fail-
Development’s
developers
other
who ob-
imate
area. Numerous
cause
The situ-
the contract.
participate
tained land in 1969 to
comply
ure to
type
the effect of
similar in
development program
ation is
Valdez urban
were
deadlines,
embargo
prevents
which
strike or an
unable to meet the construction
con-
materials
acquisition
place
of labor or
took
on other
and no construction
type
similar
also
city during
struction.
It is
lands owned
construc-
prohibiting
judicial
injunction
represent-
direct
order
A
was in effect.
each of the enumerated
In
tion Valdez.
Housing
ative of the Alaska State
Author-
en-
unanticipated
there is
situations
ity
of the in-
testified
after issuance
not attributable
cause
develop-
forced
whose
junction,
impossible for
it became
each
developer.
In
any
fault of
financing
ers to obtain
for construction
effectively
situation
facilities Valdez. We find that
su-
the dura-
developer for
impossible for
perior
clearly
court was not
erroneous
order,
strike,
judiсial
embargo,
tion of the
determining
impact
that the economic
affirm
therefore
etc. We
on the
of Val-
periods
court’s determination
specific
readily apparent
dez was
without
*6
in
707
delay provided
regard
requirement
to the
With
notice.
to ex-
found
encompass the circumstances
notice,
formal
we note
the
inist
the case at bar.9
provision
notice
was to insure that
city
not contin-
delay
knew of the
and did
argues that
city
Val
The
further
rely
expectations
ue to
on their
that the
relying on
from
Development barred
dez
housing
completed.
be
Once noti-
would
during
to excuse
Section 707
fied,
city
go
to
could
to court
seek
in force
was
that the
delay
city
unjustifia-
re
some action if the
seemed
give
to
because it failed
days.10
10
quired
within
written notice
city
The
did
ble.
know of
general
interpreting
quire
are
words
When
intent
the trial court
to find that
subjects,
specified
description
city
followed
was the same
contract between
general
meaning
Development.
limited to
words is
and Valdez
See McCormick
subjects
special
;
(2d
1962)
and those
the enumerated
McKee v.
§
Evidenсe
198
ed.
things
State,
Cal.App.2d 560,
Farm
&
nature.
State
Fire
of the same
Ga.App. 743,
Rowland,
(1959).
v.
Cas. Co.
957-958
(1965).
S.E.2d
provision
10.Section
707 contains a
that:
city
attempts
party seeking
provi-
refute the
to
The
the benefit of the
days
finding
shall,
excuse
was meant
to
Section 707
sions
section
within 10
resulting
beginning
the failure of the
from
such enforced de-
after the
demonstrating
lay,
it had
be
to
constructed
there-
have first notified the other
specifically
providing
writing,
excluded a clause
and of the cause or causes
request
pe-
thereof,
another de-
such an
in a contraсt with
and
an extension for the
city’s
veloper. However,
delay.
in-
evidence of the
riod of the enforced
dealing
tent
does not
with third
notice,
there is
and its decision
extend the
con-
to
formal
without
any way preju-
struction deadlines was
erroneous
not
that it was
evidence
no
formal no-
circumstances of this case.
to receive
by the failure
diced
court that
the trial
agree with
tice. We
A further
in this
re
issue
and lack
of actual notice
this combination
superior
lates
order
court’s
city excused Section
prejudice to the
prоp
remaining
pieces
three of the
four
requirement of written notice.
707’s
erty
Development’s
involved
original
conveyed
bid on 40
be
lots should
determining
Furthermore,
company’s
it.15 The
had been ac
bid
a forfeiture
to enforce
whether or not
cepted by
city subject
the determina
correctly
clause,
consid
keep
tion that no conflict
Record
existed.
ultimate
principles. The
equitable
ered
ing
disorganized
the time
Valdez was at
equity
is to save
proceedings
aim of the
and it was difficult to ascertain whether
from loss
parties harmlеss
respective
any particular lot
in fact available.
was
permit them each to
damage
city
parcels in
determined that the four
bargains entered
have the benefit of their
sold,
question
though
previously
had been
voluntarily.11
pointed out
As we
into
recorded,
yet
and therefore did not exe
pro
Holman,12
has not
Moran
this court
cute
for these lots with Valdez
contracts
rule in de
purely quantitative
pounded a
Development.
forfeiture, but
termining when to invoke
lan-
court found that the
for consideration
instead a rule that allows
guage
acceptance
ambiguous
in the bid
was
compensation
be made
of whether
can
interpretation.
interpreted
It
required
discharged.13
In this
the forfeiture
city of
language
mean that if the
be able
company
will
both the
time
Valdez within a reasonable
became
housing con
to obtain the benefits of
ready
convey
properties
and able to
those
subject of the bar
struction that
was
bidding par-
as the
to Valdez
interpreted Section
gain. The trial court
ty,
convey
land to
then the
delay.
provide for a reasonable
707 to
Development.
properties
Since
examining
After
the circumstances
city,
had been returned
the court
trial,
determined
time of
longer
found that a
existed and
conflict
pipeline permit
likely
Trans-Alaska
conveyance
the three lots
ordered
future, and con
granted in the near
Development.
this inter-
find
The court
struction
then commence.
could
pretation
be erroneous.
set an
deadline for commencement
absolute
view,
acceptance
in order to avoid
In our
a conditional
deci
trial court’s
was extended
open-endedness.14 The
counter-offer
*7
De-
prejudice
the bid submitted Valdez
to be without
Valdez to
sion was stated
subsequent
velopment.
arise which
a conflict to contract
events
When
should
city,
be
city’s interests were
formation was
indicate the
discovered
if
re-
city’s
a contract was
city could foreclose
offer to enter into
ing jeopardized. The
at
is no
proceed
where there
Development declined
voked. In circumstances
Valdez
offer,
change
longer
open
that the su
in the situ-
project.
hold
an
all
We
pаrties, such as the
perior
grant
forfeiture
ation
one
court’s refusal
of
of
Co.,
Company
after
F.
have until six months
Trust
243
shall
11.
Union Bond &
Ward v.
1957).
is
(9th
the Trans-Alaska
the date
2d
Cir.
476
by unappealed
finally approved
decision of
1972).
(Alaska
12.
771
appeals, decision of the United
of
proc-
Court,
presidential
Supreme
States
Norton,
13. See
Knickerbocker Life Ins. Co. v.
lamation,
all lots not later
to commence on
(1878).
234,