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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Fur Gallery, Inc. v. First National Bank Alaska (3/13/2015) sp-6986
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA FUR GALLERY, INC., )
HERNANDEZ and ASSOCIATES, LLC, ) Supreme Court No. S-14856/14875
and THE INN AT WHITTIER, LLC, )
) Superior Court No. 3AN-06-06120 CI
Appellants and )
Cross-Appellees, ) O P I N I O N
v. )
) No. 6986 - March 13, 2015
FIRST NATIONAL BANK ALASKA )
(formerly First National Bank of )
Anchorage), )
)
Appellee and )
Cross-Appellant. )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Stephanie E. Joannides and
Patrick J. McKay, Judges.
Appearances: Don C. Bauermeister, Burke & Bauermeister,
P.L.L.C., Bremerton, Washington, for Appellants and Cross-
Appellees. William Grant Callow, II, Anchorage, and
Stephen M. Dodge, Austin, Texas, for Appellee and Cross-
Appellant.
Before: Stowers and Bolger, Justices, and Eastaugh, Senior
Justice.*
[Fabe, Chief Justice, Winfree and Maassen, Justices,
not participating.]
BOLGER, Justice.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
I. INTRODUCTION
A family of business owners obtained a bank loan to invest in a fledgling
hotel project. The family later sued the bank, alleging that one of its loan officers
fraudulently induced them to invest in the project. This appeal concerns numerous
aspects of the resulting superior court proceedings. In particular, the family claims that
the bank committed a fraud upon the court through inaccurate and inconsistent portrayals
of the loan officer's conduct. We conclude that although some testimony offered by the
bank may have been misleading, it was not sufficiently egregious as to constitute fraud
upon the court. We therefore affirm.
II. FACTS AND PROCEEDINGS
William McGrew, now deceased, was a loan officer and the senior vice
president for commercial lending at First National Bank Alaska (the Bank). Among the
Bank's corporate customers were Alaska Fur Gallery, Inc. and Hernandez & Associates,
LLC. Both entities are owned and operated by members of the Hernandez family, and
we refer to these entities collectively as "the Hernandezes" unless context requires
otherwise.
The Hernandezes borrowed money from the Bank to invest in a hotel
project, the Inn at Whittier, LLC (the Inn). But according to the Hernandezes, McGrew
used his position of trust to induce unwise investments in the Inn and, when trouble
arose, assured the Hernandezes that he would relieve them of their financial liability by
finding replacement financing, which never came to fruition. The Hernandezes filed suit,
alleging both common law tort claims and Alaska Securities Act1 violations.
The case was originally tried in 2008, but for reasons not relevant to this
appeal, the superior court ordered a new trial. This second trial, conducted in 2010,
1 AS 45.55.010-.55.995.
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resulted in an award for the Hernandezes on their common law negligence claim only.
The jury found that the Hernandezes had suffered $675,000 in damages but determined
that the Bank was only partially at fault. The jury concluded that another investor,
Edward Cronick, also contributed to the Hernandezes' loss, and that the Hernandezes
themselves were negligent and unreasonably failed to avoid damages. The jury allocated
45% of the fault to the Hernandezes, 41% to Cronick, and 14% to the Bank.
Based on the jury's verdict, the superior court entered judgment against the
Bank in the amount of $94,500 in damages, plus interest. The court also awarded the
Hernandezes attorney's fees and costs. The Hernandezes' appeal and the Bank's cross-
appeal involve multiple rulings at various stages of the superior court proceedings.
These specific rulings and the underlying facts are detailed in the discussion below.
III. STANDARD OF REVIEW
A superior court's determination as to whether fraud upon the court has
2 "In reviewing the denial of a motion for
occurred is reviewed for abuse of discretion.
directed verdict or [judgment notwithstanding the verdict (JNOV)], we apply an
objective test to 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
3
their judgment." "We review denial of a new trial under an abuse of discretion standard
2 Mallonee v. Grow , 502 P.2d 432, 439 (Alaska 1972) (citing Erick Rios
Bridoux v. E. Air Lines , 214 F.2d 207, 207-10 (D.C. Cir. 1954)).
3 Turner v. Municipality of Anchorage , 171 P.3d 180, 185 (Alaska 2007)
(quoting Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska 1999)) (internal
quotation marks omitted).
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wherein we disturb the trial court's discretion only in the most exceptional circumstances
to prevent a miscarriage of justice."4
A superior court's decision to admit or exclude evidence is reviewed for
abuse of discretion, and "will be upset only if we find there has been an error which
5
"We review jury instructions de novo when
affected the substantial rights of a party."
6 Absent a timely objection, we review only for plain error.7
a timely objection is made."
Whether equitable estoppel applies is a question of law that this court reviews de novo.8
"We review the decision to award attorney's fees for abuse of discretion
9 Here, the Bank
and [will] overturn it only where the award is manifestly unreasonable."
asks for de novo review of the Hernandezes' enhanced attorney's fees award since the
judge who made that award had not been present at the two trials. The Bank argues that
since the awarding judge did not have the benefit of observing the proceedings, the
rationale for the more deferential standard of review does not apply.10
4 Id. (second alteration in original) (quoting Bierria v. Dickinson Mfg. Co. ,
36 P.3d 654, 656 (Alaska 2001)) (internal quotation marks omitted).
5 Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) (citing Dobos v.
Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000)).
6 Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (citing Reich
v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)).
7 Id. (citing Manes v. Coats , 941 P.2d 120, 125 (Alaska 1997)).
8
Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002) (citing Hubbard
v. Hubbard , 44 P.3d 153, 155 (Alaska 2002)).
9 Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013) (citing
DeNardo v. Cutler , 167 P.3d 674, 677-78 (Alaska 2007)).
10 See, e.g., Valdez Fisheries Dev. Ass'n, Inc. v. Froines, 217 P.3d 830, 833
(continued...)
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We have never reviewed an award of attorney's fees with less deference
where a new superior court judge has been assigned to a case, and we decline to do so
here. Alaska Civil Rule 82(b)(3) gives the superior court significant discretion to "vary
an attorney's fee award" based on the consideration of various factors, and makes no
distinction between a judge sitting at trial versus a judge later assigned to a matter. Even
a superior court judge who did not preside over the trial in a case may have a more
current perspective through which to evaluate some of the Rule 82(b)(3) factors, such
as "the reasonableness of the attorneys' hourly rates and the number of hours expended";
"the reasonableness of the number of attorneys used"; or an attorney's "efforts to
11 We therefore review the award of enhanced attorney's fees to the
minimize fees."
Hernandezes for abuse of discretion.
A superior court's prevailing party determination for purposes of attorney's
12
Whether an offer of judgment
fees is similarly reviewed for abuse of discretion.
complies with Alaska Civil Rule 68, however, is a question of law to which we apply
10 (...continued)
(Alaska 2009) ("The purpose of conferring discretion on the trial court to determine
reasonable actual attorney's fees is to allow it to use its greater familiarity with the details
of the case to perform an objective inquiry into these questions [of reasonable litigation
expenses] and their like." (internal quotation marks omitted)).
11 Alaska R. Civ. Pr. 82(b)(3)(C)-(E).
12 Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska
2008) (citing Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star
Borough , 135 P.3d 1000, 1002 (Alaska 2006)).
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----------------------- Page 6-----------------------
13 14
independent judgment. Similarly, we interpret the civil rules de novo, and apply our
independent judgment to the interpretation of contracts.15
IV. DISCUSSION
A. Although The Bank's Litigation Conduct Supports The Award Of
Enhanced Attorney's Fees For The First Trial, The Superior Court
Did Not Err By Finding No Fraud Upon The Court.
Before the second trial in this case commenced, the Hernandezes filed a
motion seeking to establish the Bank's liability on the grounds that the Bank perpetrated
16
a "fraud upon the court" during the first trial. The Hernandezes argued that Bank
officers, despite their knowledge that McGrew had in fact violated bank policy and may
have violated federal or state laws, presented testimony and "directed a litigation
defense" based on the claim that McGrew had never committed any wrongdoing. As
evidence, the Hernandezes pointed to alleged inconsistencies between the Bank's
testimony in their case (AFG ) and a separate case involving McGrew's conduct with
respect to a different Bank client, Todd Christianson (Christianson).17
13 Anderson v. Alyeska Pipeline Serv. Co. , 234 P.3d 1282, 1286 (Alaska 2010)
(citing Ellison v. Plumbers & Steam Fitters Union Local 375 , 118 P.3d 1070, 1073-74
(Alaska 2005)).
14 Ford v. Municipality of Anchorage , 813 P.2d 654, 655 (Alaska 1991).
15
Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004) (citing Old
Harbor Native Corp. v. Afognak Joint Venture , 30 P.3d 101, 104 (Alaska 2001)).
16 The Hernandezes' motion sought a finding of "Contempt Upon This Court
(Similar To Fraud Upon the Court)," which the superior court analyzed under Alaska's
"fraud upon the court" law. The Hernandezes do not appear to dispute this
interpretation.
17
See Christianson v. First Nat'l Bank Alaska, Mem. Op. & J. No. 1445, 2012
WL 6062124 (Alaska Dec. 5, 2012).
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----------------------- Page 7-----------------------
The superior court concluded that the Hernandezes "failed to demonstrate,
by clear and convincing evidence, conduct by [the Bank] egregious enough to support
a finding of fraud upon the court." The court also noted that the verdict from the first
trial had already been vacated; thus the Hernandezes would have an opportunity at the
second trial to "examine the bank officers about their knowledge of McGrew's conduct."
Finally, the order made clear that the Hernandezes could later seek attorney's fees
incurred during the first trial if they could "show new evidence elucidated at the
upcoming trial that [would] justify a finding of misconduct by [the Bank] or fraud upon
the court."
Upon conclusion of the second trial, the Hernandezes filed a renewed fraud
upon the court motion, which was similarly denied. However, the superior court noted
it would "consider the actions of the defense and their witnesses in conjunction with the
anticipated motion for attorney's fees," and the court ultimately awarded the
Hernandezes enhanced fees for hours spent on the first trial and on the motion for a new
trial. The court found that the Bank's "litigation conduct prior to the first trial was not
undertaken in good faith and, at times, was unreasonable" and that "testimony given in
the Christianson matter was at odds with testimony presented in this litigation." But
with regard to the second trial, the court found that the Hernandezes were able to present
"whatever evidence [they] deemed relevant and probative" and that no enhanced fees
were warranted. The Bank appeals the award of enhanced attorney's fees for the first
trial,18 and the Hernandezes contend that enhanced fees should have been awarded for
both trials.
18
The Bank raises additional issues regarding attorney's fees and costs that
are unrelated to its alleged litigation conduct. These are addressed separately in subpart
IV.G.
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The Hernandezes also appeal the denial of their fraud upon the court
motions and further contend the Bank has committed a fraud upon this court. A typical
19
Here,
remedy for fraud upon the court is to vacate the fraudulently obtained judgment.
however, the Hernandezes seek an alternative remedy, which is for this court to direct
judgment in their favor and remand solely for determination of damages.
1. Fraud upon the court may only be found in the most egregious
circumstances involving the corruption of the judicial process.
"Fraud upon the court" is an equitable doctrine that allows a court to set
20
It is an exception to the
aside a judgment obtained as a result of fraudulent conduct.
general rule that courts "[will] not alter or set aside their judgments after the expiration
21
In Alaska, the doctrine is
of the term at which the judgments were finally entered."
codified in Alaska Civil Rule 60(b), whereby a court has the power "to set aside a
22
judgment for fraud upon the court." "[T]he party claiming a fraud on the court bears
the burden of proving the claim by clear and convincing evidence."23
19 See Alaska R. Civ. P. 60(b); see also Higgins v. Municipality of Anchorage ,
810 P.2d 149, 154 (Alaska 1991) (concluding that this court's prior judgment "should
be set aside for fraud upon the court"); Mallonee v. Grow , 502 P.2d 432, 440 (Alaska
1972) (affirming a superior court's decision to set aside its prior order based on a finding
of fraud upon the court).
20
Murray v. Ledbetter , 144 P.3d 492, 497 (Alaska 2006) (citing Hazel-Atlas
Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944)).
21 Hazel-Atlas Glass Co. , 322 U.S. at 244.
22 See Murray, 144 P.3d at 497.
23 Id. at 498.
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We have noted that "specific attempts to define fraud on the court are not
particularly helpful,"24 but "have nevertheless consistently recognized that [a] fraud upon
the court may only be found in the most egregious circumstances involving a corruption
25
Similarly, we have adopted the view that the drafters of
of the judicial process itself."
Rule 60(b) viewed fraud upon the court as referring "to very unusual cases involving far
more than an injury to a single litigant."26
On the other hand, we have "declined to hold that an intent to defraud must
invariably be proved to establish a fraud on the court" and have found recklessness to be
27
sufficient. In Mallonee v. Grow , for example, a party filed for a writ of execution that
"grossly overstated" the amount a judgment debtor owed him, used the writ to levy upon
property that the debtor did not actually own, and failed to serve legally required notice
28
Although we recognized that neither the
of the motion to confirm the property's sale.
party nor his attorney had "an actual intent to defraud," we nonetheless concluded that
"the court has the same duty to rectify the wrong" "[w]hether the deprivation of a party's
rights . . . [is] attributable to a willful intent to defraud or a reckless disregard of rules or
statutory provisions."29
24 Id. at 499 (quoting Allen v. Bussell , 558 P.2d 496, 500 (Alaska 1976))
(internal quotation marks omitted).
25 Id. (alteration in original) (quoting Lowe v. Lowe , 817 P.2d 453, 457 n.9
(Alaska 1991)) (internal quotation marks omitted).
26 Id. (quoting Allen , 558 P.2d at 500) (internal quotation marks omitted).
27 Id. (citing Mallonee v. Grow , 502 P.2d 432, 438-39 (Alaska 1972); Higgins
v. Municipality of Anchorage , 810 P.2d 149, 154 (Alaska 1991)).
28 502 P.2d at 438-39.
29 Id.
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Finally, fraud upon the court may be found even in the absence of trial
counsel's involvement. In Pumphrey v. K.W. Thompson Tool Co. , the Ninth Circuit
Court of Appeals held that a gun manufacturer's in-house counsel perpetrated a fraud
upon the court when he failed to present evidence of a video-recorded test he had
30 The in-house counsel
observed during which a gun fired when dropped on the ground.
also neglected to raise the issue when the person who had conducted the experiment
31
Although the in-
testified that the gun had never fired when dropped during testing.
house counsel did not represent the gun manufacturer at trial, the court nonetheless
32
Nevertheless, the general rule is
concluded that he "engaged in a scheme to defraud."
that a witness's perjury, if "unassisted by the party in interest or by counsel, . . . does not
33
amount to fraud upon the court."
2. The trial court did not err in denying the Hernandezes' original
fraud upon the court motion.
As the superior court noted, the Hernandezes' fraud upon the court claim
requires "a factual inquiry into whether [Bank officers] were aware of any wrongdoing
by McGrew, if so, when they became aware of it, and if their testimony and pretrial
discovery square with those factual findings." We review the outcome of that inquiry
34
for abuse of discretion.
30 62 F.3d 1128, 1129-31 (9th Cir. 1995).
31 Id. at 1132.
32
Id. at 1131-32.
33 State v. Alaska Cont'l Dev. Corp., 630 P.2d 977, 991 (Alaska 1980)
(internal quotation marks omitted).
34 Mallonee v. Grow , 502 P.2d 432, 439 (Alaska 1972).
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----------------------- Page 11-----------------------
a. The Bank's alleged knowledge of McGrew's wrongdoing
As evidence that the Bank already knew of McGrew's wrongdoing during
the first AFG trial in June 2008, the Hernandezes presented testimony given by Bank
officials during the Christianson litigation. Although these statements were not made
until after the conclusion of the first AFG trial, they nonetheless shed light on knowledge
the Bank may have gained about McGrew's lending practices before the first AFG trial.
Most notably, the Hernandezes highlighted deposition testimony from Bank
senior vice president and general counsel David Lawer suggesting that Lawer knew of
McGrew's improper practices as early as 2005. When Lawer was asked when he had
discovered that McGrew "had violated the bank's rules," he answered, "With - within
the year 2005." Lawer also described his conclusion that McGrew was "making loans
[and] renewing loans at maturity to avoid identification of a borrower or borrowers who
were unable to pay prior credit obligations and who currently were not creditworthy and
. . . not worthy of further loans." Lawer stated that he reached this conclusion based on
a review of numerous loan files - a process that may have been completed before the
35 The Bank admits that repeated loan extensions to a borrower who is not
first AFG trial.
creditworthy would, "absent some justification," violate bank policy.
The Hernandezes also highlighted the statements of Bank senior vice
president David Stringer, who learned about some of McGrew's loan practices after
McGrew's death in December 2004. Stringer testified that he received multiple reports
from some of McGrew's former customers, who claimed they had been given loans "for
the purposes of the proceeds being distributed for [someone else's] benefit." Such loans,
which have their proceeds distributed to a third party rather than to the borrower, are
35 Lawer testified on March 31, 2009, that he had completed his review of
McGrew's loans before "the last year or so." The first AFG trial took place in June
2008.
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----------------------- Page 12-----------------------
sometimes referred to as "nominee loans," and McGrew's former customers told Stringer
he should look to the third-party beneficiaries for repayment. Stringer testified that he
"probably" received these reports between 2005 and 2007 and that he relayed them to
Bank president Dan Cuddy as they arose.
Stringer also testified about information he and Cuddy acquired regarding
McGrew's dealings with a particular Bank client, Kaylen LeBaron, who appeared to be
receiving the proceeds from some of these nominee loans. Stringer testified that after
36
According to Stringer's
McGrew's death, LeBaron requested a meeting with Cuddy.
testimony, LeBaron admitted at the meeting that he was the beneficiary of numerous
loans taken out on his behalf.
b. The Bank's testimony and pre-trial disclosures
The Hernandezes argue that the Bank's testimony in Christianson reveals
its representations during the first AFG trial to be fraudulent. But the superior court
could reasonably conclude that the Bank's alleged misrepresentations, when viewed in
context, did not constitute "the most egregious circumstances involving a corruption of
the judicial process itself."37
We turn first to what is arguably the Hernandezes' most persuasive
evidence of fraudulent conduct: direct discrepancies between Lawer's testimony in the
AFG and Christianson cases. During a 2007 deposition before the AFG trial, Lawer was
asked whether, "as the bank compliance officer, [he] believe[d] [McGrew] did his job
relative to lending within the parameters of federal, [s]tate, and bank rules[.]" Lawer
36 Although the Hernandezes did not attribute an exact date to this meeting,
LeBaron testified that he received a loan resulting from this meeting "four or five"
months following McGrew's death in December 2004.
37 See Murray v. Ledbetter, 144 P.3d 492, 499 (Alaska 2006) (quoting Lowe
v. Lowe, 817 P.2d 453, 457 n.9 (Alaska 1991)) (internal quotation marks omitted).
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----------------------- Page 13-----------------------
answered, "Yes, as far as I know." Yet Lawer later testified in Christianson that he
acquired knowledge about McGrew's bank rule violations in 2005.
Nevertheless, we agree with the superior court that Lawer's 2007
deposition testimony, while misleading and potentially false, was not sufficiently
egregious to find fraud upon the court. We have expressed caution in finding fraud upon
38
And although the
the court based purely on the after-discovered perjury of a witness.
Ninth Circuit has found fraud upon the court based solely on the conduct of a party's
general counsel, Lawer's conduct was distinguishable from the concealment of pivotal
39 Even if Lawer misrepresented McGrew's general track
evidence at issue in Pumphrey .
record at the Bank, the misrepresentation did not directly relate to McGrew's transactions
with the Hernandezes. The superior court could reasonably conclude that Lawer's
testimony did not constitute a corruption of the judicial process itself.40
The Hernandezes also argued that Bank officials' in-court testimony
misrepresented McGrew's history at the Bank. For instance, Cuddy testified that he
could not think of any reason why the Hernandezes should not have trusted McGrew.
Cuddy also answered affirmatively when asked if, as far as he knew, "McGrew's conduct
[was] lawful in all respects." Cuddy went on to state that McGrew "was well respected
in [the] bank and . . . [had] done a good job for . . . 25 years." Lawer testified at trial that
38 See Alaska Cont'l Dev. Corp., 630 P.2d at 991 ("While perjury by a witness
is always a cause for concern, we do not believe, even if we were to accept the state's
argument that [the opposing party's witness] committed perjury, that in this case it would
rise to the level of 'the most egregious conduct involving a corruption of the judicial
process itself,' that we have required for a finding of 'fraud upon the court' in past
cases." (quoting Allen v. Bussell , 558 P.2d 496, 500 (Alaska 1976))).
39 See 62 F.3d 1128, 1129-31 (9th Cir. 1995).
40 See Murray, 144 P.3d at 499.
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----------------------- Page 14-----------------------
he thought Cuddy had testified accurately, with the exception of one unrelated issue, and
further characterized McGrew as a "very successful" Bank employee.
The Hernandezes contrast Cuddy's AFG testimony with Stringer's
statements in Christianson that Cuddy knew about McGrew's nominee loans as early as
2005, when Cuddy began receiving Stringer's reports and met with LeBaron. The
Hernandezes argue that McGrew's use of nominee loans violated both bank policy and
federal law, contradicting Cuddy's characterization of McGrew's conduct as lawful.
However, the Bank contends that nominee loans are "not uncommon" and are only
illegal if done in a way that deceives a bank or its examiners. Because of this dispute
over the legality of nominee loans, it is possible that at the time of the first AFG trial the
Bank still lacked reason to believe that McGrew's lending practices were illegal.
Moreover, there were other reasons to discount the Hernandezes' fraud
upon the court claim. Even if Cuddy's answer that McGrew's conduct was lawful in all
respects was misleading, its impact on the court was lessened by Cuddy's disclaimer that
he had not familiarized himself with the Hernandezes' case. Likewise, the Bank's
general defenses of McGrew's character were largely subjective and likely had little
impact. And because the superior court had vacated the first jury verdict on other
grounds, the Hernandezes had already received the presumptive remedy for fraud upon
41
the court: relief from judgment. The superior court correctly noted that the second trial
would provide the Hernandezes with "the opportunity to examine the bank officers about
their knowledge of McGrew's conduct."
41 See Alaska R. Civ. P. 60(b) (noting the "power of a court to entertain an
independent action to relieve a party from a judgment, order or proceeding . . . or to set
aside a judgment for fraud upon the court").
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----------------------- Page 15-----------------------
For the reasons above, the court could reasonably conclude that the alleged
inconsistencies in the Bank's testimony did not rise to "clear and convincing" evidence
of fraud upon the court.
3. The trial court did not err in awarding the Hernandezes
enhanced attorney's fees.
While the Bank's conduct during the first AFG trial may not have been
sufficiently egregious to constitute fraud upon the court, the superior court could
reasonably conclude that testimony from the Bank's corporate officers was a bad faith
attempt to minimize McGrew's misconduct, warranting enhanced attorney's fees. This
court reviews "the decision to award attorney's fees for abuse of discretion and [will]
overturn it only where the award is manifestly unreasonable."42
In particular, Lawer's 2007 deposition testimony that McGrew had done
his job "within the parameters" of Bank rules may have prevented the plaintiffs from
discovering the extent of McGrew's wrongdoing. And it is difficult to reconcile Lawer's
2007 testimony with his later statement that "within the year 2005" he came to "know"
that McGrew had violated those rules.
As the superior court noted, "It is clear from Lawer's testimony in his
Christianson deposition that he found out sometime in 2005 from Stringer that bank
customers were making allegations against McGrew regarding nominee loans . . . ."
Lawer countered in an affidavit that merely hearing "allegations by a few defaulting
debtors" was insufficient to support a "reasonable belief" that McGrew had committed
wrongdoing. While this reasoning may, standing alone, be sensible, it does not explain
Lawer's testimony in Christianson that he came to "know" in 2005 that McGrew
violated Bank rules.
42
Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013) (citing
DeNardo v. Cutler , 167 P.3d 674, 677-78 (Alaska 2007)).
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----------------------- Page 16-----------------------
The Bank argues that in awarding the Hernandezes enhanced attorney's
fees, the superior court did not sufficiently "specify its reasons in the record."43 We
disagree. The court specifically found that "testimony given in the Christianson matter
was at odds with testimony presented in this litigation." The court could reasonably
conclude that the Bank had not adequately explained this inconsistency. Accordingly,
the court did not abuse its discretion in awarding the plaintiffs their full fees for the first
trial.
Nor did the court abuse its discretion in restricting its award of enhanced
fees to those the Hernandezes incurred for the first trial. The superior court could
reasonably conclude that the second trial offered the Hernandezes an opportunity to
"present whatever evidence [they] deemed relevant and probative" regarding the Bank
officers' testimony in prior proceedings. Accordingly, the Hernandezes had a chance to
remedy any obfuscation resulting from the Bank's testimony in the first trial. As
discussed below, moreover, the evidence that the Bank engaged in fraudulent or even
misleading conduct is less compelling with respect to the second trial.
4. The trial court did not err in denying the Hernandezes' renewed
motion for fraud upon the court.
The inconsistencies the Hernandezes rely on from the second trial are much
less serious than those alleged in their original fraud upon the court motion. These
inconsistencies did not require the superior court to direct judgment in their favor.
In their renewed motion, the Hernandezes highlighted the Bank's alleged
knowledge of McGrew's wrongdoing by the time the second AFG trial commenced in
43 See Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d 99, 102-03 (Alaska
1988) (2-2 decision) (opinion of Rabinowitz, C.J.) ("We have repeatedly recognized the
trial court's broad discretion in awarding attorney's fees. We have required only that the
trial court specify its reasons in the record when it departs from the fee schedule of Rule
82(a)." (citations omitted)).
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----------------------- Page 17-----------------------
November 2010. They pointed first to a report the Bank commissioned for its defense
in the Christianson litigation, authored by Burton McCullough (the McCullough Report).
The report is dated June 2009, and opines that McGrew issued illegal "nominee loans"
for Christianson's benefit. The Bank intimated during the second AFG trial that it did
not consider the report credible.
The Hernandezes next pointed to a superior court order issued in the
Christianson case, finding that McGrew "had established a practice of using one bank
customer to help the troubled loans and financial problems of other bank customers."
The order also found, "Much of this lending was granted to customers who did not
qualify for the loans and whose ability to pay was questionable." However, these
findings did not relate to McGrew's interactions with the Hernandezes, nor did they
specifically determine that McGrew acted in contravention of law or bank policy. This
order may illustrate the Bank's knowledge of McGrew's misconduct with respect to
Christianson by the time of the second AFG trial, but the superior court could reasonably
conclude that such knowledge was tangential to the question of whether there was
wrongdoing with respect to the Hernandezes.
The Hernandezes argue that the Bank's defense in the second AFG trial was
nonetheless inconsistent with its admission of McGrew's wrongdoing in Christianson.
For example, the Hernandezes cited the Bank's opening statement in AFG , purportedly
describing "McGrew's unwillingness to engage in fraudulent conduct." Yet in this same
opening statement, the Bank admitted McGrew "ben[t]" the Bank's policies and
procedures in order "to give a borrower a break." This kind of admission is inconsistent
with conduct "involving a corruption of the judicial process itself."44
44 See Murray, 144 P.3d at 499 (quoting Lowe v. Lowe , 817 P.2d 453, 457 n.9
(Alaska 1991)) (internal quotation marks omitted).
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The Hernandezes also highlighted Stringer's testimony during the second
AFG trial. In particular, Stringer testified that he had "never been aware of [Bank]
policies that . . . Mr. McGrew was violating," and he opined that McGrew would not
have told customers that they were not required to pay back "nominee loans" for which
they were the named beneficiaries. These claims were arguably inconsistent with
Stringer's testimony in Christianson that, beginning in 2005, he began receiving reports
from customers claiming that McGrew had given them nominee loans and assured them
they would not be responsible for repayment. Yet even if Stringer's statements during
the second AFG trial were inaccurate, his misrepresentations about whether he personally
believed McGrew engaged in prohibited practices were not sufficiently egregious to
compel a finding of fraud upon the court.
Nor did Lawer's in-court testimony during the second AFG trial warrant
such a finding. Lawer denied having personal knowledge that McGrew contravened
legal rules or Bank policies in his dealings with the Hernandezes, but conceded that
McGrew might have violated Bank policies with respect to Christianson. Lawer testified
that giving illegal nominee loans would be "out of character" for McGrew, but offered
only equivocal statements as to whether McGrew may have engaged in criminal activity.
Unlike the Bank officers' testimony during the first AFG trial, these
statements largely avoided sweeping pronouncements that McGrew had a blemish-free
record at the Bank. And when Bank officers did testify about McGrew's general track
record, they entertained the possibility that McGrew's lending practices might have
violated the law or Bank policy. Accordingly, the superior court could reasonably
conclude that the Bank did not commit a fraud upon the court during the second AFG
trial.
-18- 6986
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5. The Bank has not committed a fraud upon this court.
The Hernandezes argue that the Bank's "misrepresentations of McGrew's
conduct and presentation of false evidence" constitutes a fraud upon this court. The
Hernandezes point out that the Bank asserted in its Christianson appellate briefing that
McGrew had engaged in criminal conduct, contradicting the Bank's prior denials of
McGrew's wrongdoing. But the Bank has not asserted to this court that McGrew never
committed a crime, and the Hernandezes do not point to particular statements in the
Bank's briefing that are fraudulent. Accordingly, we conclude the Bank has not
committed a fraud upon this court.
B. The Superior Court Did Not Err In Denying The Hernandezes'
Motions For Directed Verdict And JNOV On The Issue Of Whether
McGrew Acted Solely As A "Finder."
Among the determinations the jury was asked to make in the underlying
case was whether McGrew had acted solely as a "finder" with respect to the
Hernandezes' investments in the Inn. As the jury instructions provided, "A national
bank that acts as a finder may identify potential parties, make inquiries as to interest,
introduce or arrange contacts or meetings of interested parties, act as an intermediary
between interested parties, and otherwise bring parties together for a transaction that the
45
parties themselves negotiate and consummate." The instruction also listed five
illustrative examples of what a finder could not engage in:
1) Be an agent of one party or another;
2) Broker a deal while representing only one party;
3) Make false representations as to the value or the
quality of the investment;
45 See 12 C.F.R. § 7.1002 (2014).
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----------------------- Page 20-----------------------
4) Make false recommendations as to the amount
that should be invested;
5) Make false representations about the success of
the investment.
Finally, the instructions advised the jurors that if they found the Bank or McGrew to
46
have acted only as a "finder," they must find for the Bank on all of the securities claims.
At the conclusion of trial, the Hernandezes moved for a directed verdict that McGrew
had engaged in activities that were forbidden for a "finder"; the superior court denied the
directed verdict motion.
In reviewing this issue, "we apply an objective test to determine 'whether
the evidence, when viewed in the light most favorable to the non-moving party, is such
47
The Hernandezes assert
that reasonable [persons] could not differ in their judgment.' "
that the "uncontested record" illustrates that McGrew engaged in activities forbidden for
a finder. Specifically, they point to statements made by various witnesses that, in their
view, tend to show McGrew made false representations as to the quality of the Inn as an
investment opportunity. But even if these statements were uncontradicted, as the
46 The Hernandezes' securities claims were based on the Alaska Securities
Act. Federal regulations expressly permit a national bank to act as a finder, and state law
may not "prevent[] or significantly interfere[] with the national bank's exercise of its
powers." Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712, 722 (9th Cir. 2012)
(quoting Barnett Bank of Marion Cnty., N.A. v. Nelson , 517 U.S. 25, 33 (1996)) (internal
quotation marks omitted); 12 C.F.R. § 7.1002(a) ("It is part of the business of banking
under 12 U.S.C. 24(Seventh) for a national bank to act as a finder, bringing together
interested parties to a transaction."); see also Rose v. Chase Bank USA, N.A., 513 F.3d
1032, 1037 (9th Cir. 2008) ("[T]he usual presumption against federal preemption of state
law is inapplicable to federal banking regulation." (citations and internal quotation marks
omitted)).
47
Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska 2007)
(alteration in original) (quoting Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska
1999)).
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----------------------- Page 21-----------------------
Hernandezes assert, the jurors were nonetheless free to disbelieve such testimony48 or
conclude that the alleged conduct fell within the parameters of permitted "finder"
activities.
Moreover, there was substantial testimony suggesting that McGrew acted
only as a finder, including expert testimony from one of the Bank's witnesses, Professor
Theresa Gabaldon. At trial, Gabaldon stated, "Everything I have reviewed is entirely
consistent with . . . my conclusion that [McGrew] was acting as a finder, as understood
for purposes of federal banking law." Testimony from the Inn's original investors, Kirk
Loeffler and Edward Cronick, provided further evidence favoring the Bank on this issue.
According to Loeffler, McGrew informed him that while he could provide the contact
information of potential investors, Loeffler would need to actually "sell the project" to
these contacts. Cronick similarly testified that McGrew gave "suggestions" of potential
investors and that the Inn was not using McGrew "as a sales agent." In light of this
evidence, reasonable jurors could have reached differing conclusions on whether
McGrew acted solely as a "finder."49
The Hernandezes argue that the prejudice they suffered from the denial of
their motion for directed verdict was exacerbated by the absence of a "curative" jury
instruction "that McGrew's use of nominee loans was felonious conduct." In view of our
disposition on the "finder" issue, however, the jury would have been precluded from
finding the Bank liable on the plaintiffs' securities claims in any event. And the
48 The jury was instructed, "You may believe all or none of the testimony of
any witness. You need not believe a witness even if the witness'[s] testimony is
uncontradicted."
49 The superior court also denied the Hernandezes' subsequent motion for
JNOV on the "finder" issue and in the alternative, a new trial on several issues, including
the securities claims. We conclude that for the same reasons as articulated above, the
superior court did not err in denying this motion.
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----------------------- Page 22-----------------------
Hernandezes do not show how an instruction regarding nominee loans would have been
50
relevant to their non-securities claims. Accordingly, we are not required to decide
whether the judge should have given a jury instruction regarding the legality of nominee
loans.
Similarly, we need not reach the issue of whether the superior court erred
in denying the Hernandezes' motion for JNOV finding certain outstanding debts to the
Bank non-collectible under AS 45.55.930(g). Under this statutory provision, a person
cannot sue to enforce a contract if that person had knowledge of facts which rendered the
51
But the
making or performance of the contract a violation of the Alaska Securities Act.
jury's conclusion that McGrew was only a "finder" relieved the Bank of liability under
the Securities Act.
C. The Superior Court Did Not Abuse Its Discretion In Limiting The
Evidence Concerning The McCullough Report.
The Hernandezes argue that the superior court erred in excluding the
McCullough Report from evidence and limiting McCullough's testimony. As discussed
above, the Bank retained McCullough to prepare a report for its defense in the
Christianson litigation, and the report opined that McGrew had engaged in illegal
lending activity with respect to Bank client Todd Christianson. In this case, the Bank
argued that the McCullough Report was irrelevant to McGrew's interactions with the
Hernandezes, and even if it were relevant for some limited purpose, the report's assertion
50 The Hernandezes do contend that the absence of an instruction regarding
nominee loans "allowed jurors to more easily accept [the Bank's] repeated claims . . .
that McGrew's wrongful conduct was merely minor and was undertaken only in an
attempt to assist his clients." But they do not appear to argue that such an impression
would have affected the jury's consideration of the non-securities claims.
51 AS 45.55.930(g).
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----------------------- Page 23-----------------------
that McGrew engaged in criminal wrongdoing with respect to Christianson was highly
prejudicial.
The court ultimately excluded the McCullough Report and limited
McCullough's testimony. Specifically, McCullough was allowed to testify that he had
provided the Bank with a report concluding that McGrew had repeatedly violated both
banking regulations and the Bank's policies and procedures. But he was not allowed to
state his conclusion that McGrew's conduct described in Christianson was felonious.
A trial court's decision to admit or exclude evidence is reviewed for abuse
52
The Hernandezes argue that the
of discretion and for prejudice to the opposing party.
trial court was compelled to admit the McCullough Report based on our holding in Fred
53
Meyer of Alaska, Inc. v. Bailey . But our analysis in Fred Meyer did not implicate the
key issue on which the trial court based its decision to limit McCullough's testimony:
relevance.54
In Fred Meyer , the superior court was tasked with determining whether the
defendant-employer had acted in good faith in classifying an employee as exempt from
55
overtime under the Alaska Wage and Hour Act (AWHA). In a previous lawsuit, the
employer had commissioned an expert report concluding that the plaintiff-employee's
52 Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) (citing Dobos v.
Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000)).
53 100 P.3d 881 (Alaska 2004).
54 See id. at 888. In Fred Meyer , we discussed three evidentiary objections
to the admission of an expert report: 1) that the report violated the rule limiting an
opposing party's access to non-testifying expert witnesses; 2) that the report's author
lacked the requisite personal knowledge for a lay witness; and 3) that the report was
inadmissable hearsay. Id.
55 Id. at 882, 887.
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----------------------- Page 24-----------------------
56
job position should be classified as non-exempt. Because this arguably put the
employer on notice of its AWHA violation, the report was directly relevant to evaluating
57
the employer's defense that the misclassification was in good faith.
The contents of the McCullough Report, in contrast, raise relevance
problems not present in Fred Meyer . First, the Bank did not receive the McCullough
Report until 2009 - well after the events relevant to the Hernandezes' claims took place.
Moreover, the report was limited to McGrew's misconduct relating to Christianson's
loans and did not discuss possible misconduct with respect to the Hernandezes'
transactions. According to McCullough, none of the materials he reviewed in preparing
his report related to McGrew's interactions with the Hernandezes or the Inn's other
investors, Cronick and Loeffler.
The superior court could therefore reasonably conclude that the report was
not directly relevant to McGrew's conduct with respect to the plaintiffs. The court had
considerable discretion, moreover, to limit McCullough's testimony about McGrew's
58
criminal misconduct to avoid unfair prejudice. The limitations on McCullough's
testimony were not unreasonable in view of the other evidence that the court admitted
regarding McGrew's wrongdoing in the Christianson matter.
56 Id. at 888.
57 See id. ("[The plaintiff] did not offer the report for the truth of the matters
stated; rather he offered it to show that Fred Meyer had notice of its potential violations
of Alaska law." (footnote omitted)).
58 See Cartee v. Cartee, 239 P.3d 707, 712 (Alaska 2010) ("A trial court's
decision to admit or exclude evidence is reviewed by us for abuse of discretion, and will
be upset only if we find there has been an error which affected the substantial rights of
a party." (citing Dobos v. Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000))).
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D. No Plain Error Resulted From The Special Verdict Form.
The Hernandezes argue that the questions on the special verdict form led
the jury to "unknowingly make a double reduction" of the Hernandezes' damage award.
Absent a timely objection, we review the propriety of the special verdict form and the
associated jury instructions for plain error.59
The special verdict form contained two questions that the Hernandezes
claim may have confused the jury. Question 6 asked the jury "[w]hat amount of
damages, if any, was legally caused by the [Bank's] negligence," and the jury answered
"$675,000." And Question 25 asked the jury to determine the percentage of fault
assigned to the Hernandezes, the Bank, and Cronick, who settled with the Hernandezes
out of court. The jury determined the Bank to be 14% at fault. The Hernandezes argue
that the jury understood the $675,000 figure to be solely attributable to the Bank's
negligence and did not realize that the allocation of fault in Question 25 would reduce
the amount of damages ultimately owed to the Hernandezes.
The Hernandezes are correct that Question 6 could have been framed more
clearly to emphasize that it referred to their total damages. But any ambiguity in the
question was directly addressed at trial, when subsequent requests for clarification
confirmed that the jury correctly understood what was asked of them. First, the jury
responded in the affirmative to the question, "Does your answer to Question No. 6
[damages caused by the Bank's negligence] reflect the damages you awarded to Plaintiff
59 See Cummins, Inc. v. Nelson , 115 P.3d 536, 541 (Alaska 2005) ("Without
a timely objection, we will only review [jury] instructions for plain error. A special
verdict form is a type of jury instruction subject to the same standard of review."
(footnote omitted)). We note that when a timely objection has been made, we review
jury instructions de novo. Id. Here, however, the Hernandezes point to no objection
raised below, never argue that we should apply our independent judgment, and expressly
assert that the trial court committed "plain error."
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----------------------- Page 26-----------------------
before you made any deduction based upon your answer to Question No. 25 [allocation
60 A second request asked
of fault among the Bank, Cronick, and the Hernandezes]?"
the jury to re-examine its apportionment of fault "[i]n light of [its] decision that Plaintiffs
are only entitled to damages based upon their claim of negligence." The request further
instructed the jury to "consider the nature of [the Bank's, Cronick's, and the
Hernandezes'] conduct and the extent of the causal relationship between the conduct and
any damages" the jury had identified. The jury returned the same apportionment as in
their original verdict.
These interrogatories show that in answering the special verdict form, the
jury properly calculated the amount of the Hernandezes' loss and then apportioned fault
to take into account the degree to which the Bank, the Hernandezes, and Cronick
contributed to that loss. In light of this clarification, we conclude that no plain error
resulted from the special verdict form.
E. The Hernandezes' Common Law Tort Claims Are Not Barred By The
Statute Of Limitations.
The Hernandezes' common law tort claims are governed by a two-year
61
statute of limitations. "Although a cause of action generally accrues when the plaintiff
incurs an injury, accrual can be delayed under . . . [the] common-law discovery rule."62
"[T]he discovery rule may provide different possible dates on which a statute of
63
limitations can begin to run." Generally, however, the operative date is "when the
plaintiff has information which is sufficient to alert a reasonable person to begin an
60 Emphasis added.
61 See AS 09.10.070(a).
62 Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1274 (Alaska 2013).
63 Id. at 1275.
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64
inquiry to protect his rights" - often referred to as inquiry notice. Here, the
Hernandezes conceded "that as of October of 2003 [they] were on 'inquiry notice'. . . as
to their common law misrepresentation claims." However, the Hernandezes did not file
their complaint until March 2006, after the two-year period had run.
But we have held that "[a] party who fraudulently conceals from a plaintiff
the existence of a cause of action may be estopped to plead the statute of limitation if the
plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent
65
representation." Specifically, a plaintiff must show: "(1) fraudulent conduct, which
may take the form of either an affirmative misrepresentation or a failure to disclose facts
where there is a duty to do so; (2) justifiable reliance; and (3) damage."66
In the proceedings below, the Bank filed a motion for summary judgment,
arguing that the Hernandezes' common law tort claims were barred by the statute of
limitations. In opposition, the Hernandezes pleaded equitable estoppel, citing McGrew's
alleged assurances that he would find other investors or arrange for alternative financing
to get the Hernandezes out of their investment in the Inn. The court denied the Bank's
motion, finding there were issues of fact "as to whether it was utterly unreasonable for
Plaintiffs to not be fully aware of the falsity of McGrew's alleged misrepresentation
. . . until informed so by [Bank] Vice President Stringer after McGrew's death in
January 2005."
64 Id. (quoting Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1991))
(internal quotation marks omitted).
65 Palmer v. Borg-Warner Corp. , 838 P.2d 1243, 1247 (Alaska 1992) (quoting
Sharrow v. Archer, 658 P.2d 1331, 1333 (Alaska 1983)) (internal quotation marks
omitted).
66 Gefre, 306 P.3d at 1277 (quoting Williams v. Williams, 129 P.3d 428, 432
(Alaska 2006)) (internal quotation marks omitted).
-27- 6986
----------------------- Page 28-----------------------
The Bank later filed a motion for directed verdict on the same grounds,
which the court similarly denied, first noting that it is the judge who determines whether
the elements of estoppel have been satisfied, acting "as a factfinder in determining the
applicability of the statute of limitations." The court found that McGrew made
misrepresentations to the Hernandezes and that the Bank "knew about the weaknesses
of the project" but did nothing to stop McGrew from refinancing it. Accordingly, the
court concluded that the Hernandezes' reliance on McGrew's misrepresentations was not
"utterly unreasonable." The Bank filed a motion for JNOV on the same grounds, which
the court summarily denied.
1. The superior court applied the correct burden of proof to
determine the elements of equitable estoppel.
The Bank contends the superior court should have required the
Hernandezes to prove each element of equitable estoppel by "clear and convincing
evidence." But the Bank relies on our application of this standard in real estate cases
where the application of equitable estoppel divests title from one party and transfers it
to another.67 Where title to land is at issue, the stricter standard serves to "foster reliance
68 But these policy concerns do not apply
on record title and enhance marketability."
here, and we have never required "clear and convincing evidence" to prove equitable
estoppel in the context of a statute of limitations defense. We decline to do so now.
The Bank also takes issue with the superior court's application of the
"utterly unreasonable" standard this court articulated in Palmer v. Borg-Warner
67 See, e.g., Dressel v. Weeks , 779 P.2d 324, 329 (Alaska 1989).
68 See Curran v. Mount, 657 P.2d 389, 391 (Alaska 1982) (adopting the clear
and convincing standard for adverse possession cases).
-28- 6986
----------------------- Page 29-----------------------
69
Corporation. As we have noted, "a party should be charged with knowledge of the
fraudulent misrepresentation or concealment only when it would be utterly unreasonable
70 Once it is utterly unreasonable not to
for the party not to be aware of the deception."
know about the deception, the plaintiff must take timely action or risk losing the
71
protection of equitable estoppel.
The Bank contends that the "utterly unreasonable" standard is only
applicable "in cases of fraudulent concealment of a claim." Yet the "utterly
unreasonable" standard as we have articulated it expressly applies to "fraudulent
72
misrepresentation," which is precisely what the Hernandezes alleged. We conclude that
the superior court correctly applied the "utterly unreasonable" standard in this case.
69 838 P.2d at 1251.
70 Id. ; see also Waage v. Cutter Biological Div. of Miles Labs., Inc. , 926 P.2d
1145, 1149 (Alaska 1996).
71 Palmer , 838 P.2d at 1251.
72 Waage, 926 P.2d at 1149.
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----------------------- Page 30-----------------------
2. The superior court reasonably concluded that the Bank's
defense was barred by equitable estoppel.
The issue of whether equitable estoppel applies is a question of law that we
73
review de novo. However, the elements of equitable estoppel involve questions of
fact,74 which we review for clear error.75
The Bank asserts there was insufficient evidence to support the superior
court's finding that "McGrew failed to adequately make necessary disclosures and made
misrepresentations to [the Hernandezes], such that they continued to work with him and
[the Bank]." But the Hernandezes attested that "[e]ach time McGrew advanced funds to
the Hernandez family members he would repeat that this was going to work and that as
soon as the hotel was finished he could find other investors to take the Hernandez family
completely out." McGrew allegedly made such representations in October and
December of 2003, and in January, April, May, and October of 2004. According to the
Hernandezes, McGrew also stated that he would combine the Hernandezes' various loans
into a single "wrap around" loan secured by the completed Inn.
The Bank does not appear to argue on appeal that the Hernandezes'
recounting of their conversations with McGrew is inaccurate. Rather, the Bank contends
that these statements were not "misrepresentations," but merely promises that were never
performed. We have noted that "[a] statement made as to future intentions and actions
73 Ogar v. City of Haines , 51 P.3d 333, 335 (Alaska 2002) (citing Hubbard
v. Hubbard , 44 P.3d 153, 155 (Alaska 2002)).
74 See, e.g., Palmer , 838 P.2d at 1251 ("The determination of when a
fraudulent misrepresentation or concealment should have been discovered is a question
of fact for the trial court to decide." (citing Carter v. Hoblit, 755 P.2d 1084, 1087
(Alaska 1988))).
75 Shumway v. Betty Black Living Trust, 321 P.3d 372, 375 (Alaska 2014).
-30- 6986
----------------------- Page 31-----------------------
is not a misrepresentation if it is accurate when it is made, even if future events render
76
But the Bank does not point to any evidence that McGrew intended to
it inaccurate."
perform on his promise, such as an indication that McGrew was actively searching for
another investor or had the capacity to divest the Hernandezes of their responsibility for
the project. The Bank does point out that the Hernandezes believed McGrew was
seeking replacement financing, but this does not show that McGrew actually intended
to do so. Accordingly, it was not clearly erroneous for the superior court to conclude
that McGrew's reassurances were "misrepresentations."
The Bank also makes two arguments as to why, as a matter of law,
McGrew's statements could not be considered misrepresentations. The first is that
McGrew's promise to divest the Hernandezes of their investment was unenforceable
under the Statute of Frauds, since certain types of financing or loans in excess of $50,000
77
must be in writing. But the provision the Bank cites applies only to "an agreement to
78
lend . . . or to grant or extend credit" and therefore does not apply to McGrew's
promises to divest the Hernandezes of their financial responsibility for existing loans.
The Bank also argues that McGrew's assurances were merely speculative promises
regarding a third party's actions and thus could not have been misleading as a matter of
law. However, McGrew also allegedly told the Hernandezes that if they helped him
finish building the Inn, he would help them by "find[ing] an investor to take over the
project." Thus, McGrew was taking personal responsibility for an outcome he failed to
provide, and accordingly, such a promise could constitute a misrepresentation.
76 Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co. , 45 P.3d 657, 672
(Alaska 2002).
77 See AS 09.25.010(a)(13).
78 Id.
-31- 6986
----------------------- Page 32-----------------------
In its order denying the Bank's motion for directed verdict, the superior
court also found that "in light of the bank's tacit support of McGrew's actions," the
Hernandezes were not "utterly unreasonable" in relying on McGrew's "continued
misrepresentations to allay their suspicions."
As an initial matter, the Bank argues that the Hernandezes have never
provided evidence that they actually relied on McGrew's assurances. But the
Hernandezes' reliance may be inferred from the nature of McGrew's assurances and
evidence that the Hernandezes continued to sign loan documents after their discussions
with McGrew.
The Bank also argues that reliance on McGrew's assurances would have
been unreasonable. In particular, the Bank asserts it was unreasonable for the
Hernandezes to rely on statements about potential financing that contained no details
regarding amount, source, or terms. As the superior court noted, however, McGrew was
a "long-time friend and trusted loan officer." And even testimony from the Bank's own
officers confirmed that the Hernandezes should have had no reason not to trust McGrew.
Accordingly, it was not "utterly unreasonable" for the Hernandezes to rely on McGrew's
assurances that he would secure new financing for the Inn.
F. The Issue Of Whether An Interest In An LLC Is A Security Is Moot.
The Bank argues that the superior court erred in ruling that the Hernandezes
acquired a "security" interest in the Inn, within the meaning of the Alaska Securities Act.
The court made this finding when it denied the Bank's motion for summary judgment
on the Hernandezes' securities claims. But the jury ultimately found that McGrew acted
only as a "finder," thus relieving the Bank of any liability under the Alaska Securities
-32- 6986
----------------------- Page 33-----------------------
79
Act. Therefore our determination of this issue would have no direct bearing on the
outcome of this litigation.
"Under ordinary circumstances, we will refrain from deciding questions
where events have rendered the legal issue moot. A claim is moot if it is no longer a
present, live controversy, and the party bringing the action would not be entitled to relief,
80
But under the collateral consequences exception, we may decide
even if it prevails."
a case that is otherwise moot where "a judgment may carry indirect consequences in
addition to its direct force, either as a matter of legal rules or as a matter of practical
effect."81
The Bank contends that the superior court's security interest finding has
"important collateral consequences" for the Bank. Because its insurer withdrew
coverage and defense since its policy did not cover "any claims arising out of efforts to
promote the sale of a security," and because policy disputes under the insurance policy
are submitted for binding arbitration, the Bank claims that the superior court's decision
may "unfairly prejudice the arbitrators" or be considered dispositive in the future
coverage dispute.
79 See 12 C.F.R. § 7.1002(a) ("It is part of the business of banking under 12
U.S.C. 24(Seventh) for a national bank to act as a finder, bringing together interested
parties to a transaction."); see also Gutierrez v. Wells Fargo Bank, NA , 704 F.3d 712,
722 (9th Cir. 2012) (noting that state law may not "prevent or significantly interfere with
the national bank's exercise of its powers." (citation and internal quotation marks
omitted)).
80 Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d
1165, 1167 (Alaska 2002) (alteration omitted) (quoting Gerstein v. Axtell, 960 P.2d 599,
601 (Alaska 1998)) (internal quotation marks omitted).
81
In re Mark V. , 324 P.3d 840, 843 (Alaska 2014) (quoting In re Joan K. , 273
P.3d 594, 598 (Alaska 2012)) (internal quotation marks omitted).
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----------------------- Page 34-----------------------
We disagree. The mere possibility of "unfairly prejudic[ing] the
arbitrators" is insufficient to compel resolution of an otherwise moot issue. And the
Bank presents no legal authority explaining how the superior court's interlocutory
finding would preclude an arbitration panel from reaching its own independent
conclusion on this question of law. A court's resolution of an issue has preclusive effect
only if that issue is essential to the final judgment, and other courts are not bound by
82
interlocutory findings that are not essential to a final judgment. Accordingly, the
superior court's finding that the Hernandezes acquired a security interest in the Inn will
not be controlling in the Bank's insurance coverage arbitration because that finding was
not essential to the final judgment.
We therefore conclude that this issue is moot and that the collateral
consequences exception does not apply.
G. The Superior Court Did Not Err In Determining That The
Hernandezes Were Entitled To Attorney's Fees And Costs.
In the proceedings below, the superior court determined that the
Hernandezes were the prevailing party and awarded them attorney's fees and costs. The
Bank appeals this award on several grounds.
1. The Bank's deeds of trust did not preclude the superior court
from awarding attorney's fees to the Hernandezes.
The Bank first argues that the award of attorney's fees and costs in this case
was governed by contract - namely, the deeds of trust securing the Bank's loans to the
Hernandezes. The Bank points to the following provision in its deeds of trust:
82 See RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. h (1982) ("If issues
are determined but the judgment is not dependent upon the determinations, relitigation
of those issues in a subsequent action between the parties is not precluded. Such
determinations have the characteristics of dicta, and may not ordinarily be the subject of
an appeal by the party against whom they were made.").
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If [the Bank] institutes any suit or action to enforce any of the
terms of this Deed of Trust, [the Bank] shall be entitled to
recover such sum as the court may adjudge reasonable as
attorneys' fees at trial and upon any appeal. Whether or not
any court action is involved or pending, and to the extent not
prohibited by law, all reasonable expenses [the Bank] incurs
that in [the Bank's] opinion are necessary at any time for the
protection of its interest or the enforcement of its rights shall
become a part of the indebtedness payable on demand and
shall bear interest at the Note rate . . . .
The Bank contends this suit required it to "protect and enforce" its right to repayment of
the Hernandezes' loans, and the superior court was therefore required to grant the Bank
attorney's fees and costs for its defense.
We have held that "where a contract between the parties allows for one
party to recover attorney's fees in the event of litigation, the contract provision must
prevail" over the general rule that the prevailing party in a civil case is awarded
83
attorney's fees.
Accordingly, an attorney's fees provision in the Bank's deeds of trust
would arguably govern here. We interpret the relevant contract provision applying our
84
independent judgment. "In interpreting a contract, the object is to give effect to the
reasonable expectations of the parties. To ascertain these expectations, the court looks
83 O'Connell v. Will, 263 P.3d 41, 47 (Alaska 2011) (quoting Rockstad v.
Erikson , 113 P.3d 1215, 1224 (Alaska 2005)) (internal quotation marks omitted); see
also Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or agreed to by the
parties, the prevailing party in a civil case shall be awarded attorney's fees calculated
under this rule.").
84 See Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004) (citing
Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 104 (Alaska 2001)).
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to the language of the disputed provision, the language of other provisions of the
contract, relevant extrinsic evidence, and case law interpreting similar provisions."85
The first sentence of the excerpt above states only that the Bank will be
entitled to reasonable fees in any suit the Bank "institutes" to enforce the deed of trust.
But this suit was brought by the Hernandezes, and the Bank did not bring a counterclaim
to enforce the deed of trust. Therefore, this provision is inapplicable.
The Bank seems to rely on the second sentence of the quoted language,
which allows "all reasonable expenses" necessary to protect the Bank's interest to be
added to the note by "becom[ing] a part of the indebtedness payable on demand,"
"[w]hether or not any court action is involved or pending." Accordingly, the Bank may
indeed be entitled to add certain litigation expenses to the indebtedness owed on the
Hernandezes' notes. But the Bank did not counterclaim to enforce its notes, nor are we
reviewing any judicial or nonjudicial proceeding to collect on the "indebtedness
86
payable." It would therefore defy the "reasonable expectations" of the parties to grant
the Bank its litigation expenses outside of a proceeding to collect on the Hernandezes'
notes.
Because the attorney's fees provision in the parties' contractual agreement
is inapplicable to the present dispute, the civil rules control.
2. The superior court did not err in finding that the Bank's offers
of judgment were invalid under Civil Rule 68.
The Bank argues that it made valid offers of judgment that were
significantly higher than the Hernandezes' recovery at trial, thus rendering the Bank the
85 Peterson v. Wirum , 625 P.2d 866, 872 n.10 (Alaska 1981) (citation
omitted).
86 See id.
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prevailing party under Civil Rule 68. Rule 68 encourages settlement87 by providing that
if a party makes an offer of judgment that is rejected, the rejecting party must pay
attorney's fees and costs if the final judgment "is at least 5 percent less favorable" than
88
the rejected offer. However, "[a]n offer not in compliance with Rule 68 may not be
89 "Whether an offer of judgment
considered in determining costs and attorney's fees."
complies with Civil Rule 68 is a question of law that we review using the independent
judgment standard." 90
The Bank's offer presented two recovery options to the Hernandezes: (1)
the sum of $230,000, plus interest; or (2) 105% of $212,167.67, Alaska Civil Rule 79
costs, and interest. Under either of these two options, however, $100,000 of this amount
was to "be paid by offset against the principal of one or more" of three loans owed to the
Bank: one belonging solely to Alaska Fur Gallery, one shared between Alaska Fur
Gallery and Hernandez & Associates, and one shared between Alaska Fur Gallery and
the Inn. Additionally, the offer provided that, with the exception of one particular loan,
the Hernandezes would be "discharged from their payment guarantees" for the Inn's
outstanding loans. However, the offer also listed four loans that would be "confirmed
as being valid and enforceable liabilities of the plaintiffs." In total, the principal on these
loans exceeded $5 million.
87 Pagenkopf v. Chatham Elec., Inc. , 165 P.3d 634, 644 (Alaska 2007).
88 Alaska R. Civ. P. 68(a), (b). If there are multiple defendants, the threshold
is ten percent rather than five percent. Alaska R. Civ. P. 68(b).
89 Grow v. Ruggles, 860 P.2d 1225, 1227 (Alaska 1993).
90 Anderson v. Alyeska Pipeline Serv. Co. , 234 P.3d 1282, 1286 (Alaska
2010).
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We agree with the superior court that this offer was invalid. First, both
options were joint offers, which are usually invalid as Rule 68 offers of judgment due to
91
apportionment difficulties. In determining whether a joint offer may nonetheless be
valid, we consider two factors: (1) whether "[t]he settlement offer clearly indicated all
claims between the parties would be resolved if the offer were accepted"; and (2)
whether apportionment difficulty actually exists.92
While the Bank's offer may satisfy the first factor in that it would have
resolved all of the plaintiffs' claims, "apportionment difficulty" indeed exists here. The
Bank points out that Alaska Fur Gallery and Hernandez & Associates are both owned
by members of the Hernandez family, who stated during trial that they did not see the
two entities as "distinct." But the offer of judgment not only required a lump sum to be
apportioned between these two plaintiffs, but also implicated several different loans -
one of which was held jointly by Alaska Fur Gallery and the Inn. Accordingly, it was
not clear how the $100,000 "offset" against the loan principal would be apportioned or
which of the three plaintiffs would reap the benefit of that principal reduction.93
91 See Brinkerhoff v. Swearingen Aviation Corp ., 663 P.2d 937, 943 (Alaska
1983).
92 John's Heating Serv. v. Lamb , 46 P.3d 1024, 1042 & n.85 (Alaska 2002)
(alteration in original) (citation and internal quotation marks omitted).
93 The Bank contends that the Inn should not be considered a plaintiff for
purposes of the Rule 68 offer because it had no individual claim aside from those raised
by the Hernandezes, and because the court instructed the jury that the word "plaintiff"
or "plaintiffs" in the instructions referred to Alaska Fur Gallery and Hernandez &
Associates. However, the Bank itself referred to the Inn as a separate party in its offer
of judgment, and the Bank provides no authority as to why the Inn is not a relevant party
for Rule 68 purposes.
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Finally, even if the Bank's offer were valid under Rule 68, it is unclear that
it is a better offer than what the Hernandezes received from the final judgment. The offer
contains a condition that the plaintiffs confirm the validity of over five million dollars
in loans. The litigation did not satisfy that condition: while the final judgment in this
case may not have relieved the Hernandezes of their debt obligations, it did not
affirmatively confirm their loans as "valid and enforceable liabilities." In this sense, it
would be incorrect to say that the Bank's offer - "confirming" millions of dollars in
debt liability with approximately $230,000 in compensation - was better than the
plaintiffs' recovery at trial.
3. The superior court did not abuse its discretion by concluding
that the Hernandezes were the prevailing party.
The Bank argues that it was the prevailing party, based on its defeat of
numerous claims and the small size of the Hernandezes' award compared to the total
damages sought. A superior court's prevailing party determination is reviewed for abuse
94
of discretion.
As we have held,
For purposes of awarding fees pursuant to Civil Rule 82, the
general rule is that the prevailing party is the one who has
successfully prosecuted or defended against the action, the
one who is successful on the main issue of the action and in
whose favor the decision or verdict is rendered and the
[95]
judgment entered.
94 Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1092 (Alaska
2008) (citing Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star
Borough , 135 P.3d 1000, 1002 (Alaska 2006)).
95 Day v. Moore , 771 P.2d 436, 437 (Alaska 1989) (quoting Adoption of
V.M.C., 528 P.2d 788, 795 n.14 (Alaska 1974)) (internal quotation marks omitted).
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"[A] party does not have to prevail on all the issues in the case to be a 'prevailing
96
party.' " "With few exceptions, the party who obtains an affirmative recovery is
considered prevailing."97
Here, the Hernandezes prevailed on their negligence claim, and recovered
$94,500 in damages, plus interest. Based on this affirmative recovery, the superior court
could reasonably conclude that the Hernandezes were the prevailing party.
4. The superior court did not err by declining to apportion costs.
The Bank argues that the superior court erred in awarding the Hernandezes
100% of their costs, given the jury's verdict that the Bank was only 14% at fault for the
Hernandezes' damages. The Bank requested a modified cost bill that would have
apportioned only 14% of the Hernandezes' costs to the Bank, but the superior court
denied that request. The court concluded, and the Hernandezes argue on appeal, that
Civil Rule 79(h) only applies to apportionment among multiple non-prevailing parties.
Because this issue involves the interpretation of the civil rules, we review this question
de novo.98
Civil Rule 79(h) states: "In a case in which damages are apportioned
among the parties under AS 09.17.080, costs must be apportioned and awarded
according to the provisions of Civil Rule 82(e)." Rule 82(e) provides: "In a case in
96 Id. (quoting Malvo v. J.C. Penney Co. , 512 P.2d 575, 586 (Alaska 1973)).
97
Alaska Ctr. for the Env't v. State , 940 P.2d 916, 921 (Alaska 1997) (citing
Hillman v. Nationwide Mut. Fire Ins. Co. , 855 P.2d 1321, 1327-28 (Alaska 1993)).
98 See E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106 (Alaska 2009)
("We . . . review questions of statutory interpretation de novo."); City of Kodiak v.
Parish , 986 P.2d 201, 202 (Alaska 1999) (applying independent judgment to the
interpretation of Rule 82(e)); Ford v. Municipality of Anchorage , 813 P.2d 654, 655
(Alaska 1991) ("Since this case involves the interpretation of a civil rule, we exercise our
independent judgment.").
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which damages are apportioned among the parties under AS 09.17.080, the [attorney's]
fees awarded to the plaintiff under (b)(1) of this rule must also be apportioned among the
parties according to their respective percentages of fault." And the fee schedule in Rule
82(b)(1) requires the court to calculate attorney's fees based on the judgment and, if
awarded, the prejudgment interest.
We have previously held that "the fit between Rule 79(h) and Rule 82(e)
99 When "Rule 82(e) does not apply with regard to attorney's fees, . . . the same
is snug."
conclusion must follow with respect to Rule 79(h) costs."100 And because Rule 82(b)(1)
calculates attorney's fees based on the final judgment awarded to the prevailing party -
not the claimant's total injury before apportionment - attorney's fees calculated under
Rule 82(b)(1) will already have been reduced to reflect any fault attributed to the plaintiff
or to non-parties. Where there is only one non-prevailing party, no further reduction is
necessary. Accordingly, Rule 82(e) apportionment should only occur if there are
multiple non-prevailing parties to the litigation.
Here, although the jury found that the Hernandezes, the Bank, and Cronick
all shared fault to the varying degrees, the Bank was the only non-prevailing party, and
the final judgment against the Bank reflected the Bank's percentage of fault: 14%.
Because the Bank was the only non-prevailing party against whom the jury awarded
damages, the court correctly determined that Rule 82(e) did not apply; further
apportionment of the attorney's fee award would result in a double reduction to that
award. And because Rule 82(e) did not apply, Rule 79(h) was also inapplicable. We
therefore conclude that the superior court did not err by declining to apportion costs.
99 Parish , 986 P.2d at 204.
100 Id.
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V. CONCLUSION
We AFFIRM the superior court's judgment in all respects.
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