Lewis v. Anchorage Asphalt Paving Co.

• Decision Date: 02 June 1978
• Docket Number: No. 3221,3221
• Citation: 579 P.2d 532
• Parties: J. R. LEWIS, d/b/a Four Seasons Mobiland, Appellant, v. ANCHORAGE ASPHALT PAVING CO., an Alaska Corporation, Appellee.
• Court: Alaska Supreme Court

Page 532

579 P.2d 532

J. R. LEWIS, d/b/a Four Seasons Mobiland, Appellant, v. ANCHORAGE ASPHALT PAVING CO., an Alaska Corporation, Appellee.

No. 3221.

Supreme Court of Alaska.

June 2, 1978.

Raymond A. Nesbett, Anchorage, for appellant.

Karl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellee.

OPINION

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

BURKE, Justice.

Following our decision in Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188 (Alaska 1975), this case was remanded for further findings of fact. Those findings are now the subject of another appeal.

The pertinent facts can be summarized as follows: In July of 1969 J. R. Lewis contracted with Anchorage Asphalt Paving Co. to shape, compact, and pave seven roads for a price of $57,000, in a trailer court owned and designed by Lewis. Prior to bidding on the job Julian Longoria of Anchorage Asphalt inspected the premises. Joe Longoria, Vice-President of Anchorage Asphalt, toured the area but did not leave his automobile to inspect the soil. He observed what he thought "looked like gravel on the road." According to Lewis' undisputed testimony at the remand hearing, peat and other subsurface materials were clearly visible during the inspection because water and sewer line installations were underway.

Three of the seven roads had been surfaced with "cold mix" approximately one year before the contract was made between Lewis and Anchorage Asphalt. This surface proved to be inadequate and Lewis informed Anchorage Asphalt that he was relying on their expertise to do a complete job which would last the normal, useful life (ten to fifteen years). The other four roads consisted mostly of a peat base covered with glacial till. Glacial till, which is the residue deposited by a retreating glacier, resembles gravel and in its natural state is a stable material. However, when it is removed and distributed, as was the glacial till in the instant case, it must be compacted to a high degree to make it sufficiently stable to maintain weight bearing loads. When placed over a peat base, glacial till becomes even less stable because of the moisture in the peat. Lewis had surfaced the four newer roads with glacial till from a hill on his property and he advised Anchorage Asphalt that if extra material was needed for grading the roads the same glacial till material could be used.

In July and August of 1969, without investigating the nature of the soils in the roadways, Anchorage Asphalt scraped, graded, compacted, and paved the roads. With the onset of cold weather the pavement began to deteriorate. Portions of the roads displayed "alligatoring" ¹ and an uneven settling or roller-coaster effect. Other portions of the street exhibit pot holes and portions of the surface broke up. The deterioration was caused by the uneven settling and heaving of the subsurface glacial till as it froze and thawed in concert with the moisture seepage from the peat upon which it had been placed. This sort of deterioration can be avoided if appropriate steps are taken to compact the subsurface prior to paving.

In the previous appeal we held that "an essential element of performing any contract in a workmanlike manner according to acceptable standards" ² was the duty to warn the owner of defects in the project which would be likely to cause the work to fail if the contractor knew or reasonably should have known of those defects. We remanded the case to the superior court to determine whether Anchorage Asphalt was chargeable with such knowledge. ³ On remand additional testimony was taken on that issue. After reviewing the evidence from the trial and the remand hearing, and taking judicial notice of the presence of large areas of peat, gravel, mud, clay and glacial till in the vicinity in question, the trial judge found that Anchorage Asphalt could not be charged with "knowledge of the condition of the subsurface soil, and further knowledge that paving placed on such surface would fail." Judgment was entered for Anchorage Asphalt and Lewis has appealed from that judgment contending that the finding is in error.

The standard of review for a challenge to the trial court's findings of fact is set forth in Rule 52(a), Alaska R.Civ.P., which provides in relevant part:

Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

A finding is clearly erroneous when it leaves the court with the "definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding." Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781 (Alaska 1976). Accord, Chugach Electric Ass'n v. Northern Corp., 562 P.2d 1053, 1060 n.22 (Alaska 1977). We conclude that the trial judge's decision that he could not find as a matter of law or fact, that Anchorage Asphalt "can be charged, by a preponderance of the evidence or evidence as a result of reasonable inference, with knowledge of the condition of the subsurface soil, and further knowledge that paving placed on such surface would fail," was clearly erroneous.

The primary reason for our decision can be found in the trial judge's decision itself. In the paragraph immediately preceding...