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K & K Recycling11/14/2003
exigencies dictated. If AGC's argument could stand, then every time a party wrongfully assigned a contract and the other party consequently negotiated with the assignee in an attempt to avoid a total loss, the breaching assignor would be released from liability. Every attempt to mitigate would become a novation. Such a rule is clearly untenable and undesirable.
3. The superior court did not abuse its discretion in awarding attorney's fees to K&K;instead of to AGC.
AGC contends that the court abused its discretion in awarding attorney's fees to K&K;as the prevailing party, instead of to AGC. We have "consistently held that both the determination of `prevailing party' status and the award of costs and fees are committed to the broad discretion of the trial court." We will only interfere with the court's decision if "it is shown that the court abused its discretion by issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive."
We have held that the prevailing party " `is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. [The prevailing party] is the one in whose favor the decision or verdict is rendered and the judgment entered.' " The "main issue" between K&K;and AGC was the assignment of the contract and AGC's joint liability. Because K&K;won on those issues, awarding K&K;attorney's fees was well within the superior court's broad discretion. We thus affirm the court's award of fees to K&K;
F. Seuffert's Cross-Appeal Regarding Damage Calculation, Government Agencies, and Prejudgment Interest Is Without Merit
Seuffert's cross-appeal challenges the trial court's denial of his motion for a directed verdict on K&K;s method of proving delay damages, its denial of his motion for summary judgment on K&K;s claim of breach of the implied covenant of good faith and fair dealing by contacting government agencies, and the applicability to the camp location and berm claims of the court's order that prejudgment interest shall run on all claims from August 7, 1998. We affirm all of the superior court's rulings on these matters.
1. The superior court did not err in denying Seuffert's motion for a directed verdict on K&K;s method of proving damages.
The trial court denied Seuffert's motion for a directed verdict on the issue of whether K&K;used the disapproved total cost method without meeting the prerequisites for its use. When reviewing the denial of a motion for a directed verdict, we must "determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment as to the facts." " `If there is room for diversity of opinion among reasonable people, the question is one for the jury.' "
The parties dispute whether K&K;used the total cost method, which "calculates damages by determining the difference between the actual costs incurred on a project, plus a reasonable amount for profit, and the contract price." We have determined that calculating damages by estimating how long a project should have taken to complete, comparing this to the actual time needed, and multiplying the difference by the cost of labor, equipment, and overhead per unit of time constitutes a modified total cost approach. The essence of the method is a comparison between a party's initial estimates and the actual cost or time of performing the contract. The total cost method is disfavored "because it assumes that the defendant's breach was the cau
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