*1 would ever if he were society be safe released prison. State, v. McClain 1974), (Alaska adopted
813-814 court this mistaken” the standard “clearly test as
of review in sentence Given the appeals.
heinous crimes and Nukapigak’s nature
record his hope which is devoid reha
bilitation, say we cannot that consecutive clearly
ninety-nine year are mis sentences sentencing
taken. If a court has considered criteria, Chaney Judge
each as Blair case,
did this Constitution Alaska prohibit
does not sentences which consti
tute, effect, imprisonment a lifetime of legisla
without hope parole. Until otherwise,
ture determines consecutive
ninety-nine permissible, year sentences discretion, court’s at sentencing least exceptional cases such this one. J.,
CONNOR, not participating. ASSOCIATES, INC., Joe C.
JALASKO Alaska Con-
Ashlock and General Company, Appellants,
struction CORPORATION, ENERGY
NEWBERY
Appellee.
No. 6344. Court Alaska.
Supreme
May *2 performed
Rogers work facility on the to December 1974 June 1975 and sub- mitted for repairs six invoices electrical to- $455,855.06. taling Prior September to 1975, Ashlock made a payment to Rogers. after Ashlock encoun- tered difficulty recovering under his insur- American, policy ance he made no payments. further In September Rogers filed a com- plaint to collect the balance owed and obtained an entry default. October Ashlock, Rogers, joint and the venture negotiations entered into which resulted in making $214,264.40 Ashlock a Rogers promising to and pay the remain- Norsworthy, Kenneth A. Cummings & ing Rogers’ after invoices were Routh, Anchorage, for appellants. further Rogers agreed substantiated. move for withdrawal of de- Mary Poteet, James, entry the Graham Anchor- & fault. It did so and the default was set age, appellee. for
aside. BURKE, C.J., RABINOWITZ, Before and After the pay Ashlock failed balance COMPTON, MATTHEWS and JJ. however, due, Rogers resumed the litigation
by an filing complaint. amended counterclaimed, joint and the venture as- OPINION serting Rogers’ billing was erroneous BURKE, Chief Justice. Rogers overpaid. and that had been The 4, 1974, fire at granted judgment On December a the Surf- summary court below on Camp’s pipecoating facility Rogers cote the favor judgment and entered final Rogers pursuant the for to Alaska Civil Rule Slope completely destroyed North 54(b). rulings appealed Both here. generation and camp’s capacity electrical much of its system. electrical Because We the of the propriety first address keep plant operating the need to the and ruling. Ashlock and summary conditions, the it vital extreme weather was joint summary judg- venture attack the electrical system repaired as First, argue grounds. they ment on two possible. Rogers Corpora- soon as Electric erroneously trial court concluded who (Rogers),1 already working tion was on adequate. Rogers’ billing Their Slope original and who had done the argument Rogers second is that should not facility, for the was selected to re- wiring permitted have apply been on a pair facility cost-plus basis. How- earlier invoices so as to limit the issues ever, no there was written contract. last to the amount owed on the lawsuit two invoices. camp by Joe
The Surfcote was owned managed joint a venture by Ashlock and Rogers’ billing, adequacy As to the composed Alaska General Construction there no issues of fact left to were material Associates, (joint and, law, Company and Jalasko Inc. Rogers be resolved as a matter of venture). A policy adequate fire loss written providing met its burden of docu- camp charges. appeal, American Home Assurance of its Ash- by mentation On (American) joint argue with Ashlock named lock venture Company and ers’ failed to meet the test of “sub- as the insured. invoices 1975, Newbery pur- Energy Corporation all all debts owed to 1. In interest of by Rogers. action chased and became successor causes of held states rule of Rogers properly Elec- accuracy” stantial set forth ARC Co., Inc., v. Esslinger-Lefler, tric Inc. permits apply law which a creditor to (Ariz.App.1979). Ariz. any of the debtor’s debtor’s test, however, This so a provision called debtor absent direction obligations, of a bond which surety required contract *3 payment.2 Rogers the prior to or at time of the to its subcontractor “state claim this judgment its motion on summary based ” No accuracy.’ ‘substantial Id. rule, applied because it argued and that provision such contract exists in the case at $214,- $200,000 and payments of Ashlock’s bar. invoices, its subsequent 264.40 to the oldest Electric, that ARC the court concluded obligations the only concerned debt lawsuit prove a had to actu- subcontractor failed its two It concluded that of the last invoices. cost-plus al labor costs under a contract concerning issues fact existed although of where the amount hours it recorded total of invoices, not these issues were the earlier who the specify worked but failed to did there to the last two invoices and material work. the la- The subcontractor calculated judgment. summary it was entitled to journeyman’s bor rate on the basis of a fore of wage though apprentices part even did this ar accepted court apparently The trial the stated that a work. The court also gument. cost-plus a performing contractor under keep “must a record of what mate- contract failed one to state them.” paid rials used and what it it rule law. A exceptions of to this of the Id. at 992. a a to may apply payment not creditor in Rogers, unlike the subcontractor debt, thereby cut off the debto and disputed Electric, the of la type ARC did describe ability litigate to the debt. Standard or’s corresponding borer and the labor used States, v. 154 Casualty & Co. United Surety rate, rate indicating whether the was stan Cir.1946) (after 335, (10th a contro 337 F.2d dard, Further, overtime, time. or double the nei parties, has arisen between versy item, of description a the Rogers provided designate payment how shall may ther the used and the cost of item quantity Courtemanche, 202 Or. Fowler v. applied); prop trial Rogers. We hold that the court 258, (Or.1954); Restate 413, P.2d 265 274 of Rogers’ that the form erly concluded 259(2)(c) (Second) of Contracts ment § contract ade billing cost-plus under the 940, Annot., (1946). (1982); 164 ALR 941 a as a matter of law constituted quate, and showing obligation prima facie of Ashlock’s the the time that Ashlock made At pay cost-plus the contract. under been $214,264.40 payment, a lawsuit had Rogers’ our Despite conclusion would This alone and default entered. filed impose face billing adequate on its debt was remaining not indicate cost-plus con on Ashlock under liability fact with the coupled but disputed, tract, judgment was summary hold that we payment of the withheld expressly Ashlock of this as material issues improper in case sub Rogers further remaining debt until concerning fact raised amounts were con- only we can charges, stantiated the billed the invoices. Rog work, Co., Inc., here. Cavanaugh such was not case Lumber 20 of the 2. Yancovich joint (Wash. presented and the venture Wash.App. 581 P.2d 1059 ers pro App.1978); (Second) separate of as the work Restatement Contracts invoices with six Williston, (1982); gressed. 259 S. WilBston on Con account matured on § The invoiced 1972). tracts, (3rd presentation 1796 at 394 ed. a rate annual § date of 12% past began balance to run on due argument interest reject of Ashlock and the We Thus, represented a invoice each joint governing each invoice. rules venture common-law obligation cost-plus inapplicable contract. application under the be- distinct Bas Hollywood John single obligation Electric Co. v. they Wholesale cause owe a .but Inc., cost-plus Although kin, Cal.App.2d it is P.2d contract. ers under the cost-plus 1954). (Cal. possible parties App. contract und.er billing agree single end to a total at the would elude disputed application that Ashlock the invoice “is not effective charges still Be- time, amount withheld. unless within a reasonable the credi- cause this did disputed debt not involve a tor notifies the or debtor otherwise mani- specific all invoice but rather the invoices fests to him his intention to make the appli- generally, Rogers precluded ap- record, cation.” From the it is not appar- plying the such a fact, ent that manifested to Ash- way litigate limit Ashloek’s ability its lock intent to apply the pay- the amount any owed on invoice. particular ment to the first invoice.3 Without this requisite intent, manifestation of we con-
'Summary judgment was therefore im- Rogers’ clude that application of the pay- proper since material issues of fact existed ment was ineffective and did not remove Rogers’ at least as to the earlier invoices. concerning issues the first prima invoice from the facie case of entitlement to summary Thus, scope the lawsuit. testimony was rebutted issues *4 Coleman, by fact investiga- William raised concerning insurance first tor. during deposition, Coleman stated his were invoice material to the lawsuit and that he was unable to locate on as-built summary judgment Rogers in favor of was drawings, pieces equipment various of listed improper.
in the Rogers allegedly invoices which in- summary judgment Because improp- was In stalled. fact at the summary judgment er, challenge we need not address to the hearings, Rogers admitted that issues of ruling 54(b) trial court’s under Civil Rule accuracy fact existed as to the of the billing judgment. granting final in the Rogers earlier invoices. ar- further REVERSED and REMANDED. however, gued, these disputes factual were not material to the in present lawsuit WITZ, Justice, concurring. RABINO $41,- only the lawsuit concerned 590.66 on balance owed the two most recent agree I with holding the court’s that gen- invoices. Rogers Because we find that was of uine issues material fact exist which prohibited applying require superior reversal court’s en- invoices, disputed to the earlier try summary judgment. I disagree disputes concerning factual these earlier in- position court’s rule of law and were voices material this lawsuit. exceptions thereto set out in the Restate- ers therefore was not entitled to (Second) (1982) ment of Contracts § aas matter of law. disposition appeal. relevant to the of this view, my In single this case involves a cost-
Summary judgment improper plus contract under which Ashlock made a Rogers another reason as well. asserts Rogers of installment first series Ashlock’s partial discharge of a fixed debt applied to the first invoice. At the incurred payment, obligation time of no lawsuit under the contract. Ashlock’s had been filed were any dispute. Rogers nor the invoices was not rendered divisible (Second) periodic billings under Restatement fact were presented (b) short, (1982), paid.1 partial Contracts 259 comment at 303 pay- § Ashlock’s Rogers’ copy parties agreed 3. of the first invoice contains a have whether would on less than indicating handwritten upon notation that Ashlock’s entirety of whole or would have insisted $200,000 payment invoice, applied to the exchanged); Boesiger v. De consideration $21,959.45. However, leaving a balance due of Modena, (Idaho 88 Idaho 399 P.2d the record does not reveal that Ashlock re- 1965) (apportionment of consideration is item copy ceived a of this notated invoice. determining is to consider whether contract severable, conclusive). is It entire or but not See, e.g., Management Corp. Services v. De 1. apparent here that Ashlock seems retained Associates, velopment (Utah single complete project —rehabili- 1980) (contract depending severable or entire system tation of the electrical Surfcote into; parties on intent at time it was entered facility perform a series of unrelated apportioning —not manner consideration is one Rogers’ obligation tasks. Since could not intent, determining factor but basic test is dispute abrogate right
ments did not its under the
the total amount due contract.
parties’ unitary 'cost-plus DIGGS, Appellant,
Derrick DIGGS, Appellee.
Vera
No. 7206.
Supreme of Alaska. Court
May *5 Anchorage, appel- for Simpson,
Helen L. lant. Dickerson, ap- Anchorage,
M. Ashley pellee. RABINOWITZ, BURKE, C.J., and
Before COMPTON, JJ. MATTHEWS perform divisible, (en banc) (contract when is divisible neither should Ashlock’s. viewed as Inn, equiva party Corp. be divided into Motor ance of each can See Baffin Land v. Monticello parts). 1967) corresponding (Wash. lent and 70 Wash.2d