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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Arcticorp v. C Care Services, LLC (7/20/2018) sp-7261
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
ARCTICORP, )
) Supreme Court No. S-16452
Appellant, )
) Superior Court No. 3AN-15-05556 CI
v. )
) O P I N I O N
C CARE SERVICES, LLC and )
STATE OF ALASKA, DEPARTMENT ) No. 7261 - July 20, 2018
OF HEALTH & SOCIAL SERVICES, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Douglas R. McMillan and John W. Colver,
Colver & McMillan, LLC, Anchorage, for Appellant.
Scott D. Friend, Assistant Attorney General, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for Appellee
State of Alaska, Department of Health & Social Services. No
appearance by Appellee C Care Services, LLC.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
A commercial tenant breachedits leaseandowedunpaid rent. Thelandlord
sued and obtained a writ of attachment against any funds owed the tenant from Alaska's
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Department of Health and Social Services (DHSS). DHSS replied to the writ by stating
it owed nothing to the tenant because a recent audit showed the tenant owed DHSS $1.4
million. Without responding to DHSS's reply the landlord moved for a writ of execution
against DHSS, which the superior court denied after finding there were no funds to
attach. The court denied the landlord's motion for reconsideration, as well as its request
for a hearing to examine DHSS. The landlord appeals the denial of its motion for
reconsideration and seeks a remand for a hearing to examine DHSS. We affirm the
superior court's orders.
II. FACTS AND PROCEEDINGS
Arcticorp, a commercial real estate company, leased property to C Care
Services, LLC for a five-year term beginning July 1, 2014. The following month the
federal government apparently shut down C Care pending a criminal investigation for
Medicare and Medicaid billing fraud. Unable to operate, C Care failed to pay rent after
October 2014.
Arcticorp filed a complaint for breach of contract in March 2015 and
simultaneously movedfor a prejudgment writ of attachment against CCare under Alaska
Civil Rule 891 and AS 09.40.010.2 Arcticorp also sought to attach any funds DHSS may
have owed for services C Care rendered prior to its forced closure. Arcticorp did not
attempt to serve DHSS the writ papers.
Around the time Arcticorp filed its complaint, DHSS was seeking to
recover funds it was owed by C Care for Medicaid billing fraud. After an audit, in mid-
March DHSS informed C Care that Medicaid overpayments made to C Care exceeded
1 See Alaska R. Civ. P. 89 (providing procedures for writs of attachment).
2
See AS 09.40.010(a) (enumerating actions in which attachment is
authorized).
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$1.4 million. Before DHSS began its recovery process C Care had an opportunity to
appeal that determination, but it did not. The decision not to appeal may have been a
consequence of a plea agreement C Care's owner entered into in May in a state criminal
case against her. According to Arcticorp's summary of the plea agreement, C Care's
owner agreed not to appeal certain overpayment and restitution findings and to forward
any funds received from others to pay C Care's debt to DHSS.
In early April C Care answered Arcticorp's complaint and admitted to all
allegations of breach and money owed. Shortly thereafter the superior court issued a writ
of attachment, ordering DHSS's accounting department to attach any and all accounts
owed to C Care to satisfy its debt to Arcticorp. Later that month Arcticorp wrote a letter
notifying DHSS of the writ; it was addressed "To Whom It May Concern" and mailed
to a post office box of the "Alaska Department of Health and Social Services."
Arcticorp did not attempt to serve the writ on DHSS according to the Civil Rules. 3 In
August C Care confessed judgment in Arcticorp's favor, and both parties entered a
stipulation and covenant not to execute.
In September, five months after the court issued the writ of attachment,
DHSS replied to Arcticorp that no money was owed C Care and that there were no funds
to attach. DHSS explained that the Office of the Attorney General serves as counsel for
DHSS and that the writ of attachment, although sent to DHSS, had not been forwarded
3 Alaska Civil Rules 4(d)(7) and (8) provide that service of process upon a
State agency must be made "by registered or certified mail to the Attorney General of
Alaska" in Juneau (and the chief of the Attorney General's Office in Anchorage or
Fairbanks if the matter is filed in the Third or Fourth Judicial District) and by "delivering
a copy of the summons and of the complaint to such . . . agency." See also STATE OF
ALASKA, DEP 'T OF LAW, OP. ATT'Y GEN., 1977 WL 21953, at *2 (Mar. 31, 1977)
(concluding legislature intended that Rules 4(d)(7) and (8) also apply to service of
attachment papers).
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to the Office of the Attorney General until August. DHSS further noted that before the
writ of attachment was issued DHSS had audited C Care and determined C Care owed
DHSS over $1.4 million. DHSS's reply included the affidavit of its medical assistance
administrator who conducted the audit, as well as its correspondence with C Care
concerning the audit results.
In October, after receiving DHSS's reply, Arcticorp requested an entry of
a final judgment on confession against C Care; the court entered the final judgment in
December.
Arcticorp moved for a writ of execution against DHSS in May 2016, eight
months after DHSS had indicated there were no funds to attach in response to
Arcticorp's writ. The court denied the motion. It found credible DHSS's explanation
that no funds were payable to C Care. The court reasoned that "[b]ecause no funds exist
and because [DHSS] bears no duty otherwise to pay the defendant's debts, entry of the
requested order would be futile." The court also observed that Arcticorp had not
properly served DHSS the original motion for a writ of attachment, delaying the court's
receipt of important information until after it entered the writ of attachment and denying
DHSS "due process within which to confirm or deny that such funds existed." But the
court noted DHSS had not asked that the writ be vacated.
Arcticorp moved for reconsideration, advancing three arguments. First,
Arcticorp had no duty to serve the motion for a writ of attachment on DHSS because
DHSS was not a required party to the action. Second, the court should ignore DHSS's
reply because DHSS, a non-party, had not properly intervened under Alaska Civil Rule
24. Finally, DHSS had not met its burden to show that it owed C Care no funds.
Arcticorp also requested a garnishee proceeding, requiring DHSS to "show cause and
submit evidence in support of [its] position" that it owed C Care no funds. The court
invited C Care and DHSS to respond to Arcticorp's motion, but neither did so.
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----------------------- Page 5-----------------------
The superior court denied Arcticorp's motion for reconsideration. The
court found Arcticorp had not provided DHSS proper notice of the original motion for
a writ of attachment and characterized Arcticorp's Rule 24 intervention argument as
"absurd," given that it "invited DHSS['s] participation in the case when it sought the
[w]rit of [a]ttachment." Questioning Arcticorp's standing to "challenge DHSS['s]
determination that it does not owe [C Care] money," the court rejected Arcticorp's
"contention that the burden of proof falls on DHSS." The court held that DHSS had
provided "sufficient evidencetoshowthat execution is not warranted" and that, although
the "[w]rit . . . froze any money DHSS might owe" C Care, "the [w]rit did not establish
that in fact DHSS actually held money owed to [C Care]."
Arcticorpseeks reversal oftheorder denyingits motion for reconsideration,
arguing that DHSS failed to timely intervene under Rule 24. Arcticorp also seeks
remand for a garnishee proceeding to examine DHSS.
III. STANDARD OF REVIEW
"The respective burdens to be borne by 'garnisher' . . . and 'garnishee' "
involve questions of statutory interpretation.4 We apply our independent judgment to
such questions, reviewing a court's interpretation of statutes de novo and "adopting the
rule of law that is most persuasive in light of precedent, reason, and policy."5 We also
4 See von Gemmingen v. First Nat'l Bank of Anchorage (von Gemmingen I ),
789 P.2d 353, 355 (Alaska 1990); Anchorage Helicopter Serv., Inc. v. Anchorage
Westward Hotel , 417 P.2d 903, 906 & n.1 (Alaska 1966).
5 Ruerup v. Ruerup, 408 P.3d 1203, 1206 (Alaska 2018) (quoting Stephanie
F. v. George C., 270 P.3d 737, 746 (Alaska 2012)).
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----------------------- Page 6-----------------------
apply our "independent judgment to decide whether it was error not to hold an
6
evidentiary hearing" to resolve a disputed factual issue.
IV. DISCUSSION
We begin our analysis with an overview of writs of attachment and
garnishee proceedings. After a civil action commences, Rule 89 permits a plaintiff to
apply to the court to "attach" the property of the defendant "as security for satisfaction
7
of a judgment that may be recovered." The plaintiff must file a motion with an affidavit
8
A
showing the existence of a contractual debt and the plaintiff's right to recover it.
court may issue the writ of attachment only after the defendant is (1) served notice of the
9
motion and a copy of the affidavit, and (2) given an opportunity for a judicial hearing.
At the hearing the plaintiff must "establish by a preponderance of the evidence the
probable validity of the plaintiff's claim for relief in the action and the absence of any
10
reasonable probability that a successful defense can be asserted by the defendant."
Upon this showing the court must issue a writ of attachment against the defendant, which
"shall be directed to a peace officer and shall require the peace officer to attach and
6 See Limeres v. Limeres, 367 P.3d 683, 686 (Alaska 2016) (quoting Routh
v. Andreassen , 19 P.3d 593, 595 (Alaska 2001)).
7 Alaska R. Civ. P. 89(a).
8 Alaska R. Civ. P. 89(b).
9 Alaska R. Civ. P. 89(c)(1)-(2).
10 Alaska R. Civ. P. 89(d).
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----------------------- Page 7-----------------------
11
safely keep property of the defendant not exempt from execution." Debts owed by
third parties to the defendant may be attached. 12
Third-partydebtors holding property that cannotbetakenintocustodymust
13 Upon
be served a writ of attachment and a notice specifying the property attached.
service of the writ and notice, AS 09.40.060 provides that the third party "shall within
a reasonable time and in any event within 24 hours furnish . . . a statement designating
the amount and description of any personal property . . . belonging to the defendant, or
any debt the person owes to the defendant." If the plaintiff is unsatisfied by the third
party's response, or the third party fails to respond at all, the third party "may be ordered
to appear before the court and be examined concerning . . . the debt."14
Rule 89(l) governs the in-court examination of a third party, called a
15 a third-party debtor who is ordered to appear before the court
"garnishee proceeding";
for such an examination is called a "garnishee."16 The equivalent of a service of
17 During garnishee proceedings the
summons must be made upon the garnishee.
11 Alaska R. Civ. P. 89(e).
12 AS 09.40.040 ("All persons having in their possession personal property
belonging to the defendant or owing a debt to the defendant at the time of service upon
them of the writ and notice shall deliver, transfer, or pay the property or debts to the
peace officer . . . .").
13 Alaska R. Civ. P. 89(f)(3). We note that nothing in Rule 89 suggests a
third-party debtor mustbeserved theoriginal motion for prejudgment writ ofattachment.
14 AS 09.40.060.
15 See Alaska R. Civ. P. 89(l).
16 Alaska R. Civ. P. 89(l)(1).
17 Id. ("The order . . . shall be served upon the garnishee and return of service
(continued...)
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----------------------- Page 8-----------------------
"plaintiff may utilize the rules of discovery . . . with respect to all matters relating to
18
property of the defendant believed to be in the possession of the garnishee."
Issues of
19
fact may be resolved through a trial with witnesses.
The court may enter judgment against the garnishee if the court finds that
the garnishee has any property of the defendant, whether "beyond the amount admitted
20
in the garnishee's statement, or in any amount if a statement is not furnished."
Execution of the writ of attachment "may issue upon a judgment against a garnishee as
upon a judgment between plaintiff and defendant."21
Given this framework, we address Arcticorp's arguments that the superior
court erred by (1) considering DHSS's reply to the writ of attachment because it failed
to timely intervene and was not a party to the action, and (2) denying Arcticorp's request
22
for a show-cause hearing in its motion for reconsideration.
17 (...continued)
made in the manner provided for service of summons and return thereof in Rule 4.").
18 Alaska R. Civ. P. 89(l)(3).
19 Alaska R. Civ. P. 89(l)(4).
20 Alaska R. Civ. P. 89(l)(5).
21 Alaska R. Civ. P. 89(l)(7).
22 Although Arcticorp briefed the issue whether it properly served the writ of
attachment on DHSS, DHSS did not ask for the writ of attachment to be vacated on this
or any other basis in the superior court, and it does not do so in this court. Because the
superior court's decision to deny the motion for a writ of execution rested on a different
ground - the unavailability of funds to attach - we do not address whether Arcticorp
failed to properly serve the writ of attachment.
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----------------------- Page 9-----------------------
A. It Was Not Error To Consider DHSS's Reply To The Writ Of
Attachment.
Arcticorp argues the superior court erred by considering DHSS's reply to
the writ of attachment because DHSS neglected to file a timely motion to intervene under
Rule 24. Arcticorp urges reversal of the order denying the writ of execution because the
court should not have allowed DHSS a "de facto intervention." Arcticorp
misunderstands garnishment procedures.
We have held that garnishment procedures are "narrowly construed" to
23
"protect the innocent garnishee from liability to either garnishor or judgment debtor."
Neither Alaska's statutes nor civil rules require formal intervention for a garnishee to
respond to a writ of attachment. They rather require that a garnishee receive notice of
24
the writ of attachment and be given an opportunity to respond. Together AS 09.40.060
and Rule 89(l) require the garnishee to furnish a reply describing the debt allegedly
owed, and, in anticipation of a dispute arising from the reply - i.e., that the garnishee
might contest the amount of debt allegedly owed to the defendant - they provide a
25
procedure to resolve disputes.
Alaska Statute 09.40.060 describes the procedure for response by a third
party indebted to a defendant and states in its entirety:
When a peace officer with a writ of attachment applies to a
person for the purpose of attaching property mentioned in the
attachment, the person shall within a reasonable time and in
any event within 24 hours furnish the peace officer with a
statement designating the amount and description of any
personal property in the person's possession belonging to the
23 Beery v. Browning , 717 P.2d 365, 368 (Alaska 1986).
24 See id. ; AS 09.40.060; Alaska R. Civ. P. 89(f)(3), ( l).
25 See A.S. 09.40.060; Alaska R. Civ. P. 89( l).
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----------------------- Page 10-----------------------
defendant, or any debt the person owes to the defendant. If
the person refuses to do so, or if the statement is
unsatisfactory to the plaintiff, the person may be ordered to
appear before the court and be examined concerning the
property or debt. (Emphases added.)
The statute not only allows the third party to respond to a writ of attachment, it requires
a response upon receiving notice of the writ of attachment.
Rule 89(l)(5), governing judgments following a garnishee proceeding, also
contemplates a reply upon service of the writ, stating:
If it shall be found [after a hearing] that the garnishee, at the
time of service of the writ of attachment and notice, had any
property of the defendant liable to attachment beyond the
amount admitted in the garnishee's statement, or in any
amount if a statement is not furnished, judgment may be
entered against the garnishee . . . . (Emphases added.)
Both Rule 89(l) and AS 09.40.060 thus provide a third party the opportunity to reply to
a writ of attachment prior to garnishment without resorting to formal intervention under
Rule 24. As a named third party in the writ of attachment, DHSS was not required to
formally intervene under Rule 24 for the court to consider its reply.
It is true that DHSS responded to the writ of attachment five months after
it issued, and, by DHSS's own report, nearly a month after its legal counsel received
Arcticorp's letter notifying DHSS of the writ; the delay apparently was due to
26 Arcticorp argues that DHSS's reply "was
Arcticorp's informal service of the writ.
moot because of the untimeliness of the filing." But Arcticorp raises its timeliness
argument to us only briefly under its theory of intervention under Rule 24, rather than
26
See note 3 and related text.
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----------------------- Page 11-----------------------
under the relevant statutes pertaining to garnishee proceedings. Given the inadequacy
of the briefing, the issue is waived and we will not consider it. 27
B. It Was Not Error To Deny Arcticorp's Request For A Show Cause
Hearing In Its Motion For Reconsideration.
Arcticorp contends that the audit was insufficient evidence that DHSS was
not indebted to C Care and that the court erred by placing the burden of proof on
Arcticorp to show otherwise. Arcticorp argues that it is entitled to a garnishee
proceeding to propound discovery on DHSS under Rule 69(a), Rule 89(l)(1), and
AS 09.40.060. Arcticorp also argues that C Care's owner's plea agreement raises
important new "avenues of inquiry" for a garnishee hearing, "particularly where [the
owner] agreed that C Care would 'assign any and all future awards paid . . . to cover the
above identified overpayments.' " (Emphasis omitted.)
Contrary to Arcticorp's assertions, it is not "entitled" to an examination
without making some showing that DHSS owes a debt to C Care. We have held that
"(1) a judgment creditor bears the burden of showing that the garnishee has property of
the judgment debtor, and (2) the garnishee has the burden of proving an affirmative
28 The superior court did not err in its determination
defense to the garnishment action."
27 A party may waive its challenge to a lower court action by failing to brief
the issue adequately. See Hagen v. Strobel , 353 P.3d 799, 805 (Alaska 2015) ("[W]here
a point is given only a cursory statement in the argument portion of a brief, the point will
not be considered on appeal." (alteration in original) (quoting Glover v. Ranney , 314
P.3d 535, 545 (Alaska 2013))).
28 von Gemmingenv. First Nat'lBankof Anchorage (von Gemmingen II),890
P.2d 60, 64 (Alaska 1995); see also von Gemmingen I, 789 P.2d 353, 355 (Alaska 1990);
Steenmeyer Corp. v. Mortenson-Neal, 731 P.2d 1221, 1225 (Alaska 1987); Anchorage
Helicopter Serv., Inc. v. Anchorage Westward Hotel, 417 P.2d 903, 906 (Alaska 1966).
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----------------------- Page 12-----------------------
that Arcticorp bore the burden of "establishing that at the time of garnishment process"
29
- service of the writ of attachment and notice - DHSS was indebted to C Care.
We conclude the superior court did not err in finding Arcticorp never met
its burden, particularly in the face of DHSS's strong and credible evidence of offset.
Arcticorp offered no evidence of DHSS's debt to C Care in its prejudgment motion for
a writ of attachment. Neither the attached affidavit nor the complaint detail any
arrangement between DHSS and C Care. Apart from the motion's conclusory statement
that DHSS "owes C Care . . . for the professional services rendered prior to the start of
any investigation by the [FBI]," Arcticorp made no showing that DHSS owed a "debt . . .
which would be recoverable" at the time of service of process.30
DHSS metits burden of "proving an affirmative defense to the garnishment
31 DHSS's reply included an affidavit from a medical assistance administrator
action."
with personal knowledge of the audit, as well as its letter to C Care enclosing the audit
and stating C Care owed DHSS over $1.4 million. It was not error to conclude that this
was sufficient evidence that DHSS was not indebted to C Care. Arcticorp did not
produce any evidence showing otherwise in the eight months that elapsed between
receiving DHSS's reply and moving for a writ of execution. And Arcticorp's request for
a hearing, raised for the first time in its motion for reconsideration, was also devoid of
any showing. At no point did Arcticorp produce any affidavits or documents raising
29 von Gemmingen I, 789 P.3d at 355 (quoting Steenmeyer Corp., 731 P.2d
at 1225).
30 See Anchorage Helicopter Serv., Inc., 417 P.2d at 906 & n.1 (citing
AS 09.40.040).
31 von Gemmingen II, 890 P.2d at 64.
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triable issues of fact with respect to DHSS's reply.32 It was not error to find a hearing
was unwarranted.
As for Arcticorp's contention that the substance of the plea agreement
merits a hearing, Arcticorp failed to raise this argument before the superior court and it
33 And the argument is unavailing. The agreement
therefore is not preserved for appeal.
provision Arcticorp cites - C Care's agreement to forward future awards from Xerox
State Healthcare to DHSS to pay off C Care's debts - does not change the fact that
DHSS owes C Care no money and C Care owes DHSS over $1.4 million. If Arcticorp
now wishes to pursue funds owed from another entity to C Care, Arcticorp may request
that the court issue additional writs of attachment. Requiring DHSS to participate in
court proceedings over a nonexistent debt to C Care is not an appropriate remedy.
V. CONCLUSION
The superior court's orders denying the motion for a writ of execution and
denying the hearing request are AFFIRMED.
32 See Alaska R. Civ. P. 89( l)(4) (providing for trial if issues of fact arise
between plaintiff and garnishee).
33 Ivy v. Calais Co., 397 P.3d 267, 275 (Alaska 2017) ("An argument is
ordinarily not preserved for appeal if it was not raised below, or if it was only raised after
the party filed a motion for reconsideration." (footnote omitted)).
-13- 7261
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