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K & K Recycling11/14/2003
d are ordinarily required to show the existence of an intent to agree on an accord. The burden of demonstrating that material issues of fact exist concerning a party's intent to enter an accord is a light one; "issues of material fact are easily raised in scrutinizing an alleged accord and satisfaction."
Seuffert locates the alleged accord in his disagreement with K&K;over the meaning of "attached equipment and related facilities," the walking of the property to tag items, the handshake on the division of items, and the testimony at the hearing as to the nature of the "division agreement." This accord was satisfied, Seuffert states, because K&K;removed the agreed-upon items. K&K;does not dispute that there was an agreement between Karl and Seuffert as to how the items in the "pipe yard" should be treated, but it deems this irrelevant to its case. K&K;notes that the only property issue discussed at the injunction hearing was the "pipe yard" equipment; the equipment and facilities in the Old Town were never mentioned, since Karl had not yet learned of them.
Nothing in the record indicates that the agreement between Seuffert and Karl was meant to settle the whole litigation, create a new contract, or satisfy the contract. The agreement was never put on record as an accord and satisfaction, and Judge Funk, who presided over the hearing and who later presided over the case, was skeptical that an accord and satisfaction had been agreed to at that hearing. Rather, the agreement between K&K;and Seuffert apparently was made in an attempt to settle the immediate issue before them, namely ownership of the items in the "pipe yard" and on #5 Below Discovery.
Because there was no evidence of an intent to supersede the original contract or to settle all issues in the litigation, the superior court's grant of summary judgment cannot be affirmed on the alternative ground of accord and satisfaction. Accordingly, we reverse the superior court's grant of summary judgment to Seuffert on the issue of the dredge equipment and facilities in the Old Town.
B. The Superior Court Did Not Err in Granting AGC and Seuffert Summary Judgment on K&K;s Repudiation Claims
K&K;argues that the August 4 letter from Seuffert's attorney was a repudiation and material anticipatory breach because it made demands that were "inconsistent with the terms of the K&K;AGC agreement." To be a repudiation, "a party's language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform." A repudiation could also involve language that clearly manifests an "intention not to perform except on conditions which go beyond the contract[.]" Similarly, to be an anticipatory breach based on a request for additional conditions, "the request must be coupled with an absolute refusal to perform unless the request is granted."
K&K;contends that the letter imposed materially different conditions. For instance, Eagan testified that AGC would not have required the approval of government agencies, would not have required a written work plan, and would not have considered K&K;to be trespassing when it went to inspect the dredge. While Seuffert's letter does appear to impose some new restrictions on access to the dredge, several other "conditions" such as the work plan were phrased merely as requests. Furthermore, Seuffert's request for tender and his statement that " easonable written requests to enable K&K;to perform its contract obligations will not be denied" show that the letter did not convey an unequivocal refusal to perform. Accordingly, the court did not err in granting AGC and Seuffert summary judgment on
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