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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martin v. Coastal Villages Region Fund (04/27/2007) sp-6120
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JAMES A. MARTIN and | ) |
| MARGARET MARTIN, | ) Supreme Court No. S- 11999 |
| ) | |
| Appellants, | ) Superior Court No. 3AN-03-10973 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| COASTAL VILLAGES REGION | ) No. 6120 - April 27, 2007 |
| FUND and JAMES HANSON, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon L.
Gleason, Judge.
Appearances: Douglas K. Mertz and William F.
Cummings, Juneau, for Appellants. Michael N.
White, Friedman, Rubin & White, Bremerton,
Washington, for Appellee Coastal Villages
Region Fund.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
This appeal revolves around competing legal and
equitable claims asserted by the Coastal Villages Region Fund
(CVRF) and the Martins to a fund of money deposited with the
superior court in Anchorage. The funds were originally held by
Trident Seafoods, and derived from sales of halibut caught by
Bruce Lewis. The Martins and CVRF asserted separate legal
claims against Lewis in the superior court the Martins filing
their case in Juneau, and CVRF proceeding in Anchorage. Both
parties eventually recovered default judgments against Lewis.
Meanwhile, the Trident money had been deposited for safekeeping
with the court in Anchorage. Relying on their Juneau judgment,
the Martins sought to claim the deposited funds. The court in
Anchorage awarded the funds to CVRF instead, ruling that the
Martins claim was barred because it depended on Lewiss right to
the funds, which Lewis had lost by defaulting to CVRF. We
reverse. Because the rights both parties assert to the funds
depend on equitable claims arising from Lewiss original interest
in the Trident money, we conclude that the parties dispute must
be determined by the relative equities of their competing claims,
not by Lewiss willingness to concede his lack of legal interest
in the funds. Since the equitable claims remain unresolved, we
remand for further proceedings.
II. FACTS AND PROCEEDINGS
The Coastal Villages Region Fund is a community
development quota (CDQ) non-profit corporation. Each year the
United States and Alaska governments allocate to CVRF a quantity
of halibut to be harvested. Fishing for halibut under the
program is limited to residents of the villages CVRF represents
and the villages themselves.1
James Hanson attempted to obtain a card permitting him
to fish from CVRFs allocation of CDQ halibut, but was told that
he did not qualify because he did not live in a CVRF community.
He nevertheless persisted in his efforts and eventually managed
to obtain a permit. Hanson then entered into a contract with
Bruce Lewis, a Juneau fisher, which stated that Hanson was a
qualified CDQ license holder. Under the contract, Lewis was to
fish under Hansons CVRF CDQ allocation. A certain percentage of
each landing was to go to an IFQ [Individual Fishing Quota]
Broker and a certain percentage to the CDQ Group. Hanson was
listed as the CDQ Group Representative and as a Card Holder.
James Al Martin and Margaret Martin are commercial
fishers living in Juneau. In March 2003 they leased their
fishing vessel, the F/V Middle Pass, and its equipment to Lewis.
Under the lease contract Lewis was to use the boat and he would
pay the Martins twenty-five percent of gross landings during the
charter period. Lewis was also responsible for the costs of
operating the vessel and for returning the vessel on August 15,
2003 in good condition and with the fuel tanks full.
Lewis proceeded to harvest significant amounts of
halibut under the Hanson contract using the Martins vessel and
equipment. On August 3, 2003, Lewis delivered approximately
45,000 pounds of halibut to Trident Seafoods Corporation, a fish
processor. Around August 16, 2003, Lewis delivered an additional
47,810 pounds of halibut to Trident.
During this time period, Lewis took the vessel into the
Bering Sea, failed to maintain contact with the Martins, and did
not send payments required under the lease. The Martins located
Lewis and extended the lease until September 20, 2003. But Lewis
still did not return the vessel as planned and the Martins
threatened Lewis with arrest. On October 7, 2003, the Martins
received a call from the owner of a dock facility at Auke Bay,
north of downtown Juneau, telling them that the F/V Middle Pass
was located at the docks. The Martins went to the facility and
found the vessel and crew, but Lewis had already left. The
vessel was damaged: rotten fish in the hold had not been cleaned;
equipment was broken; gear and equipment were missing; it had run
out of fuel and was inoperable due to engine damage. The Martins
arranged to have the vessel towed to their Juneau dock space.
They cleaned and repaired the vessel at their own cost, but they
missed part of the black cod season and their crabbing was
limited because the vessels poor condition made it unsafe to
travel to more distant waters. According to the findings of fact
and conclusions of law entered by the Juneau superior court, the
only proceeds the Martins received from landings made by Lewis
were $4,623 in a single payment made directly to the bank that
held a lien on the boat.
Meanwhile, after learning that the halibut allocation
had been issued to Hanson based on his misrepresentation of
residency within a CVRF community, CVRF sought an injunction
against Trident Seafoods to have funds from the halibut landings
held until the rightful owner of the money could be determined.
There is no indication that Hanson, Lewis, or the Martins were
notified of the motion for preliminary injunction or the lawsuit
initiated by CVRF against Trident Seafoods.
On September 2, 2003, the superior court in Anchorage
granted CVRFs preliminary injunction and ordered funds from
Trident Seafoods to be deposited with the court until the
rightful owner could be determined. Pursuant to the order,
Trident sent a check to the clerk of court for $110,174.13,
representing payment for the August 16, 2003 delivery of halibut
by Lewis to Trident. In October 2003 CVRF dismissed Trident
Seafoods as a defendant and substituted Hanson and Lewis. In its
amended complaint before the Anchorage court, CVRF claimed that
Hanson had fraudulently obtained access to a CVRF CDQ allocation
and then entered into an agreement with Lewis to fish for the
halibut. CVRF claimed that Lewis knew or should have known that
Hanson was not authorized to harvest the halibut. CVRF sought a
judgment against Hanson and Lewis in an amount exceeding
$223,000.
In November 2003 the Martins filed a separate action
against Lewis in the superior court at Juneau. They alleged that
Lewis failed to pay them under the terms of the boat lease
agreement, damaged the vessel, and failed to return the vessel on
time. Their complaint expressly alleged their right to recover
from the funds held on deposit in Anchorage.
CVRF moved to intervene in the Juneau case of the
Martins against Lewis and have it dismissed so that the case
could be decided in the ongoing Anchorage proceedings. The
Juneau court denied CVRFs motion to intervene and dismiss. The
Juneau court characterized the Martins claim against Lewis as a
contract dispute between owners of a boat and the charter
operator of the boat. The court noted:
[This] court makes no ruling as to whether it
can, should or will enter an order with
respect to funds held by the Anchorage court.
Unquestionably plaintiffs are only entitled
to a portion of that money if the defendant
in this case is entitled to a portion of it.
Probably, too, CVRF is only entitled to a
portion of that money if the defendant in
this case is not entitled to a portion of it.
The lawsuits should determine those
entitlements and the proper disposal of the
funds held by the court.
On March 10, 2004, because Lewis had not appeared in
CVRFs Anchorage case, the Anchorage court entered a default
against him. Lewis also failed to appear in the Juneau case. In
Juneau, the Martins testified and offered exhibits in support of
their claim, including requests for admission that were deemed
admitted after Lewis failed to make a timely response.
The Juneau court issued its findings of fact and
conclusions of law on July 20, 2004. It found that Lewis
violated his contract and was liable for damages to the Martins.
The court set out the damages by category including lost fishing
opportunities due to the late return, failure to pay for the
lease, damage to the vessel, third-party charges against the
vessel, and missing equipment and gear for a total judgment of
$135,431.13 in favor of the Martins. Regarding the Trident
Seafood funds, the Juneau court noted that proceeds from a
halibut landing had been placed into an account with the
Anchorage court, that the amounts due to the Martins under the
vessel charter in this case were earned by them in the contract
resulting in the landings that paid the money that is now in the
registry of the court in Anchorage, and that the amount owed to
the Martins was substantially overdue. But the court stated that
it makes no decision as to how the money in the registry of the
court in Anchorage shall be distributed.
The Martins moved to have the funds in the Anchorage
court released to them based on the Juneau judgment. The Martins
argued that [t]hey possess the sole judgment against the funds
and could have executed against the funds while they were in
Tridents hands or Lewiss hands, had this court not intervened.
And that [t]he funds would not even exist except for the Martins
providing their vessel for the fishing effort. The Martins cited
the contract between Hanson and Lewis, in which the CDQ permit
holder would be entitled to fifty percent of the landings at
best. They also argued that a permit holder would only be
entitled to net after the cost of the boat hire and the boat
damage.
On October 11, 2004, while the Martins motion was still
pending, Lewis sent to the Anchorage court a Demand for an
Opportunity to Resolve this Matter Outside of Court. Lewis
demanded that the court allow him and CVRF the opportunity to
resolve this matter in private and that if CVRF persisted in
using the court system he would file criminal charges of tax
fraud against it. Lewis further demanded a trial by jury if the
case remained in court.
On October 19, 2004, the Anchorage court denied the
Martins motion to release funds because it appears that the
Martins claim to the funds on deposit in this case would be
derivative of any claim of Mr. Lewis to the funds; default had
been entered against Lewis on March 10, 2004; the Martins were
not parties to the CVRF v. Hanson and Lewis case; and they had
not moved to intervene.
The Martins then moved to intervene in the case but
stated that they have no factual claim to pursue in the upcoming
trial in this matter and do not intend to participate in that
trial; they have already had a trial of their own claim and have
received a judgment. The Martins argued that their existing
judgment entitled them to priority because without this courts
action of ordering the funds seized, the Martins would already
have been able to satisfy their judgment out of it.
The Anchorage court granted the Martins motion to
intervene. In December 2004 the Anchorage court addressed Lewiss
Demand for an Opportunity to Resolve this Matter Outside of
Court, noting that default had previously been entered against
Lewis and that Lewis was required to first obtain an order
setting aside default before he could participate in the
proceedings.
Trial was rescheduled for January 31, February 1, and
February 2, 2005. On January 18 the Martins filed their complaint
against CVRF in the Anchorage court, again noting their final
judgment against Lewis and seeking a declaratory judgment that
they have priority to satisfy their judgment out of the Trident
funds. The Martins also alleged abuse of process because CVRF
obtained the preliminary injunction against the Trident funds
without notifying them.
On January 27 CVRF and Hanson reached a settlement in
which CVRF stipulated to the dismissal of all claims against
Hanson. Also on January 27 the Martins gave the Anchorage court
notice that they had filed another suit in Juneau this time
against CVRF and Hanson to contest their claim that a judgment
from [the Anchorage] court entitles them to priority over the
Martins, who already have a judgment that they have sought to
execute against those funds, as well as claims of abuse of
process.
On January 31 the Anchorage court issued a judgment in
favor of CVRF. On February 2 CVRF filed a motion in the Juneau
court to dismiss the Martins claims of abuse of process, as well
as a motion to dismiss for improper venue or alternatively to
change venue. In Anchorage, CVRF filed a motion to consolidate
the Martins new Juneau case with the ongoing case in Anchorage.
On February 15, in Anchorage, CVRF moved for release of
the funds held by the Anchorage court. Also on February 15
Lewis submitted a notice and demand letter to CVRF with a copy to
the Anchorage court. Stating that he had been given
permission/standing by his crew, Lewis demanded a settlement of
the matter.
On February 22 CVRF gave notice in the Anchorage court
of scheduled depositions of the Martins. The Martins sought a
protective order before the Juneau court to prevent the
continuing campaign of harassment against the Martins by CVRF and
to find that the Martins were not required to submit to
depositions. In March 2005 CVRF withdrew its request for
depositions because the Martins had promised to provide the
contract requested by CVRF.
In late February 2005 the Anchorage court granted CVRFs
motion to consolidate the Juneau case; the Anchorage court also
stated that any further proceedings would be before it.
On April 7 the Anchorage court addressed Lewiss
February notice and demand. The Anchorage court noted that
[l]etters are an inappropriate format for communication to the
court and that accordingly it would not take any action with
respect to Lewiss letter.
On June 6 the Juneau court granted CVRFs motion to
dismiss the Martins abuse of process claims. That same day the
Anchorage court ordered a release of the funds to CVRF after
[h]aving considered the arguments of all parties, the extensive
briefing, and oral arguments. Of the total $110,174.13 held by
the court, $90,174.13 was sent to CVRF, while $20,000 was sent to
Hanson under a settlement with CVRF.
On September 1 the Juneau court granted CVRFs motion
for summary judgment in the Juneau case, noting that the case had
been consolidated into the Anchorage proceedings.
CVRF moved for enhanced attorneys fees and costs in
Anchorage under Civil Rule 82(b)(3) because, it argued, the
Juneau litigation was simply a frivolous attempt by the Martins
to obtain a hometown advantage and there could be no reasonable
argument that the declaratory judgment action filed in Juneau
served any purpose other than to drive up everyones costs or to
simply forum shop.
On October 19, 2005, the Anchorage court issued its
final judgment in favor of CVRF. The Anchorage court also
granted CVRFs motion for enhanced attorneys fees because pursuit
of the second Juneau case was unreasonable given this pending
court proceeding, and resulted in unnecessary legal expenses.
The Martins appeal the Anchorage decision.
III. DISCUSSION
The Martins make four major arguments on appeal: that
the preliminary injunction in favor of CVRF was improperly
granted; that the Anchorage court erred in not enforcing the
Juneau judgment against CVRF; that the Anchorage court erred in
giving the entirety of the seized Trident Seafood funds to CVRF;
and that the Anchorage court erred in granting CVRF an enhanced
fee award.
A. The Preliminary Injunction
The Martins first argue that the court erred in seizing
funds to which the Martins had an obvious claim in an ex parte
hearing without notifying the Martins so they could participate
in the hearing. We review the issuance of preliminary
injunctions for abuse of discretion and will find an abuse of
discretion only when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling.2
CVRF initially filed its lawsuit only against Trident
Seafoods and obtained an injunction against it; CVRF does not
contest that no notice was given to the Martins. CVRF argues
that it was only seeking to ensure the funds were not taken in
order to preserve the status quo and that it had notified Trident
as the holder of the funds.
A preliminary injunction requires that a defendant have
an opportunity to be heard; here, there is an issue whether a
defendant or an adverse party includes the Martins.3 But while
CVRF could have realized that the Martins might be an adverse
party over the distribution of the funds, and though preliminary
injunctions are generally harsh remedies, their purpose is not to
immediately initiate a full trial on ownership. The purpose of a
preliminary injunction is to maintain the status quo.4 There is
no indication that CVRF was doing anything but preserving the
funds pending a final judgment, even though CVRF might have known
that there would be other potential claimants. The preliminary
injunction fulfilled its purpose to hold the funds until claims
against them could be filed and determined.
And it is not obvious that the Martins were harmed by
the injunction. The Martins argue that it is not controvertible
that the Martins would have received their earnings if the
Anchorage court had not seized the funds just before Trident
mailed the check made out to the Martins. But CVRF argues that
the funds would not have automatically gone to the Martins.
While a Trident Seafoods bookkeeping record states that the funds
were held in an account for the Martins and checks were payable
to the Martins, according to deposition testimony of an employee
of Trident Seafoods this was merely plugged into a spreadsheet;
it did not mean that the Martins would have automatically been
paid. Because the Martins chose not to argue any factual issues
in Anchorage, this issue was left unresolved.
For these reasons, we do not find an abuse of
discretion in the trial courts issuance of a preliminary
injunction.
B. The Effect of the Juneau Judgment in Anchorage
The Martins main argument is that because their Juneau
judgment was obtained first, before the Anchorage case was
resolved, they had priority to the funds held by the court. The
Martins argue that the Anchorage court was required to implement
the Juneau judgment against the funds in Anchorage under a full
faith and credit theory.
The Martins claim that the Juneau court found the
funds held by the court in Anchorage were earned by the Martins
and that [the Juneau court] clearly expected [the Anchorage
court] to respect this finding and release those funds, even
without [the court] ordering it.
But the Martins overstate the Juneau judgment.
Although the Juneau court ruled that the Anchorage funds could be
traced to the Martins contract with Lewis, it expressly declined
to decide on the disposition of those funds:
The court finds that the amounts due to
the Martins under the vessel charter in this
case were earned by them in the contract
resulting in the landings that paid the money
that is now in the registry of the court in
Anchorage. The amount owed is substantially
overdue. The court makes no decision as to
how the money in the registry of the court in
Anchorage shall be distributed.
(Emphasis added.)
The Juneau court found that the Martins were owed money
under the contract and that money from the contract was in the
court registry in Anchorage. But this says nothing about the
priority of the Martins claim to the funds in light of other
claims against them. Because of this, there was no relevant
judgment to give full faith and credit to, and it is irrelevant
that the Juneau judgment was issued first.5 The Martins argument
that they should have priority to the funds as a matter of law
based solely on the Juneau judgment is without merit.
C. Equitable Principles
The Martins also argue that the trial court neglected
its duty to apply equitable principles in determining rights to
the funds. They note that there are five classes of potential
claimants to the funds held at Trident Seafoods: the Martins as
lessor; Lewis; Hanson and CVRF as permit claimants; the crew of
the F/V Middle Pass; and judgment holders namely the Martins.
And each class may assert equitable claims against the money that
was seized under the preliminary injunction. But the key issue
is which potential equitable claimants actually attempted to
enforce their rights. Hanson settled the case and Lewis
defaulted; Lewis also claimed to be acting on behalf of the crew,
but he provided no support and no crew members have sued.6 Thus
the only two relevant parties here are the Martins and CVRF.
CVRF argues that the Martins abandoned any arguments on
equitable distribution before the superior court and on appeal.
CVRF cites the Martins opposition to its motion to compel
discovery in which the Martins resisted CVRFs demands to produce
information on the relationship between the Martins and Bruce
Lewis and correspondence between them and exhibits from the
Juneau case. The Martins reply stated that [their] participation
in this litigation is solely to enforce an existing judgment and
that [t]he sole question before the court is whether their
judgment can be enforced against the funds. CVRF argues that by
resisting discovery and limiting the claim to one solely through
the Juneau judgment, the Martins abandoned any potential equity
claim. In addition, CVRF argues that the Martins waived their
arguments by not raising any equitable claims in the points on
appeal, even if they later raised them in their appeal brief.7
The Martins argue that they raised equity arguments
throughout the process and that their points on appeal
essentially cover the equitable concern. With respect to the
points on appeal, the Martins are correct in the general sense;
they mention fairness and the funds to which the appellants were
entitled an umbrella phrase suggesting equitable issues. And
though the Martins claims were primarily based on the Juneau
judgment, the Martins clearly raised equity concerns below. In
their memorandum in support of their motion to release funds,
they argued that CVRF would be unjustly enriched by taking all of
the fishing profits excluding the cost of providing the boat and
gear. The Martins motion to preserve funds argued an unjust
enrichment claim, contending that [w]ithout [the Martins]
providing the boat and gear, there would be no funds. In
opposing CVRFs motion for release of funds, the Martins again
argued that it would be unjust enrichment for CVRF to take the
entirety of the funds.
During the oral proceedings before the court, the
Martins counsel made several equity arguments, including that we
all know that in fact Lewis caught the fish and hired the crew
that caught the fish. In other words, Lewis did, more directly
than anyone else, generate the funds here, and we know Lewis
earned the money using the Martins boat and gear. In other
words, both the Martins and Lewis earned it, had . . . in some
sense a very real direct entitlement to it. The Martins attorney
also argued that there are multiple lenses through which the case
could be viewed, including one of equity-based claims to the
funds.
The Anchorage court agreed with CVRF that the Martins
did not maintain an equity claim. At trial Superior Court Judge
Sharon L. Gleason stated I guess my sense is that the position
that the Martins, as Ive understood it, have taken in this
litigation has been that their rights to these monies derive
solely from the fact that Mr. Lewis had that they have a
judgment against Mr. Lewis, and Mr. Lewis is a party to this
action. The Anchorage court ruled that the Martins claims were
derivative of Lewiss, and that because Lewis had no claim to the
funds, there was no basis for the Martins to recover.
From the transcript of the oral argument it appears
that there was miscommunication between the Martins attorney and
Judge Gleason. The Martins did resist discovery and sought to
have a judgment based on the existing record alone. But the
Martins resistance to CVRFs discovery request simply reflected
their reluctance to intervene formally in CVRFs legal action
against Lewis. The Martins had already won a judgment on their
own claim against Lewis in Juneau, and they understandably wanted
to avoid a formal intervention that CVRF might use as an
opportunity to collaterally challenge their Juneau judgment.
The superior court viewed the Martins reluctance to
intervene as precluding them from establishing a superior legal
right to the funds claimed by CVRF. But as already mentioned
above, the Martins were not merely asserting their legal right to
collect their judgment from the Anchorage funds; instead, they
separately asserted an equitable right to the specific funds,
claiming that they had earned those funds and that CVRF would be
unjustly enriched by an award of the funds. Moreover, as we have
also discussed above, the Anchorage funds had been seized by an
ex parte injunction, which simply had the effect of preserving
the status quo to allow the ownership of the funds to be
determined. Although the funds had been seized in connection
with the pending Anchorage case, CVRFs seizure of the funds by ex
parte injunction rather than by execution or some other form of
levy gave it no right or priority over other potential creditors
of Lewis who might seek to recover against the seized funds.
Nor did CVRF assert a direct claim against the
Anchorage funds in its action. It pursued its superior court
case as an action seeking damages for fraud against Lewis and
Hanson, not as an action against the deposited funds. The
complaint did assert an interest in the specific funds by
alleging that they could be traced to the fraud allegedly
committed by Hanson and Lewis; but this claim was advanced on a
constructive trust theory an equitable claim deriving from
Lewiss original interest in the funds.
Thus, once CVRF established its legal claim by default
against Lewis, its judgment gave it a legal right to recover from
Lewis and an equitable claim against the Anchorage funds. From a
procedural standpoint, CVRFs position was indistinguishable from
the Martins: both parties were judgment creditors of Lewis who
sought to assert competing equitable claims to the funds
deposited in Anchorage. As matters currently stand, neither
party has established any basis for claiming priority to those
funds as a matter of law.
In dismissing the Martins claim on the ground that
their rights to these monies derive solely from the fact that . .
. they had a judgment against Mr. Lewis, the superior court
apparently overlooked both the assertion by the Martins of an
equitable claim to the particular funds held by the court and the
equitable nature of CVRFs competing claim to those funds.
CVRF insists on appeal that the Martins abandoned their
equitable claim by failing to argue it before the superior court.
But our review of the record discloses no unequivocal waiver of
the Martins unjust enrichment claims. The equitable claims were
set out in the Martins pleadings, and the transcript of
proceedings before the superior court reveals no express or
implied abandonment of the claims. CVRF did not characterize its
discovery request as addressing the Martins unjust enrichment
claim, did not assert that their failure to provide the discovery
precluded a ruling on that issue, or advance any other specific
argument addressing the Martins unjust enrichment theory or its
own constructive trust theory for claiming the seized funds.
In their briefs on appeal, both CVRF and the Martins
attempt to argue the merits of their competing equitable claims.
The Martins urge us to decide the issue without a remand. But
the facts on record are insufficient for this court to make a
determination. And it is the role of the trial court, and not
this court, to judge the credibility of any witnesses and to
weigh conflicting evidence.8 Further proceedings are required to
address the Martins unjust enrichment claims and to determine the
extent of their equitable rights to the Anchorage funds in
relation to the equitable rights claimed by CVRF.
We must therefore remand the case to the superior court
for additional proceedings to resolve these issues after giving
both parties an opportunity to obtain appropriate discovery to
support their positions. The superior court should also on
remand require the parties to give notice of the proceedings to
the crew members so that any claims they have against the fund
for their crew share can be adjudicated.
D. Other Issues
Because of the remand, other arguments raised are moot,
including the issue of an enhanced fee award.
IV. CONCLUSION
For the reasons set out above, we REVERSE and REMAND to
allow the trial court to determine the merits of the parties
equitable claims.
_______________________________
1 These villages include: Scammon Bay, Chevak, Hooper
Bay, Newtok, Napakiak, Oscarville, Napaskiak, Eek, Tuntutuliak,
Kongiganak, Quinhagak, Goodnews Bay, Platinum, Kwigillingok,
Kipnuk, Chefornak, Nightmute, Tununak, Toksook Bay, and Mekoryuk.
2 City of Kenai v. Friends of Recreation Ctr., Inc., 129
P.3d 452, 455 (Alaska 2006).
3 Alaska Rule of Civil Procedure 65(a)(1) states that
[n]o preliminary injunction shall be issued without notice to the
adverse party. The Alaska rule is equivalent to Federal Rule of
Civil Procedure 65(a).
4 United States v. Guess, 390 F. Supp. 2d 979, 984 (S.D.
Cal. 2005) (A preliminary injunction is a device for preserving
the status quo and preventing the irreparable loss of rights
before judgment. ) (citing Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)).
5 The fact that CVRF was not allowed to intervene in the
Juneau case also highlights that the Juneau case was limited as
between the Martins and Lewis. The Juneau court characterized
the claim of the Martins against Lewis as a contract dispute
between owners of a boat and the charter operator of the boat.
6 The Martins argue that Lewis attempted to avoid default
and should have been given the benefit of the doubt. But even
absent standing and waiver issues, there is nothing in the record
to indicate that the court abused its discretion in refusing to
take action on Lewiss two submissions. Both were filed at least
seven months after default had been entered and the second was
filed after judgment had been entered in the Juneau case; neither
specifically sought to set aside default or the judgment; and
neither asserted any valid defenses. In his second letter Lewis
claimed to have been given permission/standing to sue by the
other crew members and/or to settle this matter on their behalf,
but he provided no support for this contention and his letter was
rejected as an inappropriate means of addressing the court.
7 Citing Murat v. F/V Shelikof Straight, 793 P.2d 69, 74
n.12 (Alaska 1990).
8 Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005).
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