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K & K Recycling11/14/2003
alked about [this instruction] several times, and it sets forth the total actual - finds both to be a jury question, sets forth the four elements.
MR. SHEEHAN: I think you've got a grammatical mistake on the second paragraph, third line. I think that should read "allowed to recover only if K&K;"
THE COURT: Right. You mean the "for that" should be deleted.
MR. SHEEHAN: Yeah.
THE COURT: I think so. Got me convinced. Anybody else? Anything else on that one anyone sees?
MR. LEWIS: Okay.
THE COURT: Okay?
The court then turned to the next instruction. Although K&K;asserted at oral argument that it did object to Instruction No. 34, our review of the transcript reveals that K&K;did not object to this instruction after it was drafted, apart from asking for a small grammatical correction. We conclude that K&K;s failure to adequately object constitutes a waiver of its complaints about the instruction. Furthermore, as explained below, the instruction is also a correct statement of the law. As there was no error or prejudice in giving Instruction No. 34, there are no grounds for reversal.
K&K;argues that Instruction No. 35 is incorrect because there was no evidence that K&K;failed to mitigate and because the evidence was that K&K;did mitigate by moving the dredge despite the obstacles created by Seuffert and AGC. The superior court specifically found that there was some evidence of failure to mitigate and allowed the instruction to go to the jury. Because the court's finding is not clearly erroneous, the instruction is a correct statement of the law, and there was no clear prejudice from giving the instruction, we conclude that Instruction No. 35 provides no grounds for reversal.
K&K;argues that the last paragraph of Instruction No. 36 concerning speculative damages is misleading, and when read with Instruction No. 34 requires an unreasonable burden of proof. K&K;maintains that much of its damages are based on two promissory notes and that K&K;was precluded on cross-examination from clarifying the contingency of these notes on the grounds of relevance. K&K;contends that it should have been allowed to explain that the reason the dredge was not operating was because of this litigation and because K&K;needed the parts, equipment, and facilities in the Old Town to activate the dredge. K&K;alleges that based on the wording of Instruction No. 36, the jury concluded that payment of these notes was "not reasonably certain" and that they were not "actual costs" as discussed in Instruction No. 34.
K&K;s disagreement is not really with the wording of Instruction No. 36, but rather with the superior court's evidentiary ruling. However, K&K;has not raised as a claim of error its evidentiary argument that it should have been allowed to explain the promissory notes' contingency on cross-examination. Furthermore, it is unclear how the giving of this instruction, as distinguished from the court's evidentiary ruling, actually prejudiced K&K; Accordingly, we conclude that Instruction No. 36 also does not constitute grounds for reversal.
E. AGC's Cross-Appeal Concerning Assignment, Novation, and Attorney's Fees Is Without Merit
AGC's cross-appeal contends that the superior court should have dismissed all claims against it because the assignment to Seuffert was proper and because the agreement between Seuffert and K&K;was a novation. AGC thus challenges the court's denials of its summary judgment motions on the claim that the assignment to Seuffert constituted a breach and the claim that AGC was liable for Seuffert
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