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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brett Crowley; Knik Aircraft Leasing, LLC; and Wingnuts Aviation, LLC., v. Northern Aviation, LLC, and NA Holdings, LLC. (5/10/2019) sp-7361
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
BRETT CROWLEY; KNIK )
AIRCRAFT LEASING, LLC; and ) Supreme Court No. S-16587
WINGNUTS AVIATION, LLC, )
) Superior Court No. 3AN-11-10519 CI
Appellants, )
) O P I N I O N
v. )
) No. 7361 - May 10, 2019
NORTHERN AVIATION, LLC and )
NA HOLDINGS, LLC, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Kevin T. Fitzgerald, Ingaldson Fitzgerald,
P.C., Anchorage, for Appellants. Gregory S. Parvin, Law
Office of Gregory S. Parvin, Wasilla, for Appellees.
Before: Stowers, Chief Justice, Winfree, Bolger, and Carney,
Justices. [Maassen, Justice, not participating.]
CARNEY, Justice.
I. INTRODUCTION
Two debtor limited liability companies (LLCs) executed security
agreements in favor of two creditor LLCs, giving the creditor LLCs security interests in
three airplanes. Disputes arose when the creditor LLCs, considering the debtor LLCs in
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default, took possession of two airplanes and removed and retained parts of a third
airplane. After a bench trial the superior court entered judgment against the debtor LLCs
and an individual associated with both of them. The debtor LLCs and the individual
appeal, raising issues about default, seizure of collateral, and post-seizure notice; the
individual alsoquestions thejudgment against himpersonally. We affirmin part, reverse
in part, and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
1. Businesses involved in the dispute
The debtor LLCs in this litigation are Wingnuts Aviation, LLC (Wingnuts)
and Knik Aircraft Leasing, LLC (Knik), both aviation-related LLCs. Brett Crowley was
a member of both LLCs. Wingnuts operated a flight school that was, for most of the time
relevant to this case, based at the Palmer Airport. Knik was organized to buy airplanes
that Wingnuts could lease. Each debtor LLC had one other member: the other member
of Wingnuts was Tara Chesnut, and the other member of Knik was Richard Walker, who
also operated a separate aviation-related business.
The creditor LLCs involved in this litigation are Northern Aviation, LLC
(Northern) and NAHoldings, LLC; Jeffrey Helmericks is the sole owner ofNorthern and
NA Holdings. Northern leased, maintained, and sold aircraft. NA Holdings offered
"fuel, tie-down spaces, aircraft maintenance," and "[b]asic aviation support." All of the
businesses involved in the litigation operated at the Palmer Airport.
2. The Cessna loan
On July 1, 2013, Knik signed purchase agreements related to two Cessna
airplanes, one agreement with Northern and one with N8681U, "a sub-LLC of Northern
Aviation at the time." The purchase agreements required Knik to make a 20% down
payment on each aircraft, with the purchase to be completed in ten days. Because Knik
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was not able to obtain outside financing, Northern agreed to lend $72,000 to Knik, and
on July 10, Knik signed loan and security agreements for financing the Cessna airplanes.
Helmericks obtained both contracts from an internet site. The loan agreement included
a guaranty provision under which Crowley and Walker both "unconditionally
guarantee[d]" Knik's obligations.
The loan agreement set out a payment schedule over 15 years, recited that
the loan was secured by the Cessnas, and listed events that would be considered default
by Knik, including "a default in any security agreement which secures this [n]ote." The
security agreement identified the two Cessna airplanes as collateral and gave Northern
a security interest in them. It required Knik to "maintain insurance at all times with
respect to all collateral against risks of fire, theft, and other such risks and in such
amounts as [Northern] may require" and to "make all repairs . . . necessary to maintain
any [c]ollateral in good working order and condition." The default provision of the
security agreement specified that Knik would be in default "upon any non compliance
with or non performance of [its] obligations" under the security agreement.
Knik made the down payment in mid-July. Knik's subsequent payments
frequently varied from the loan agreement schedule in both amount and timing, but
Northern continued to accept them. Knik's sole source of income was Wingnuts's lease
payments. It is undisputed that Knik never had insurance for the Cessnas. Helmericks
was aware of the lack of coverage as early as late 2013. Helmericks and Crowley
discussed alternatives to commercial insurance because of its cost but disputed whether
they had agreed to a specific alternative.
In November 2014 Crowley informed Helmericks that Wingnuts intended
to move its operations to Wolf Lake, a location about seven miles from Palmer.
Helmericks said Wingnuts could not take the Cessnas there; Crowley disagreed, and
Helmericks told Crowley that Knik was in default and had been from the first month of
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the contract. A heated discussion that included Walker ensued. The exact sequence of
actionsin theCessnas' repossession is disputed, but Helmericks, evidently with Walker's
cooperation, secured the Cessnas in hangars. Helmericks agreed that Knik made another
payment on the Cessna loan the following month. Northern later sold one Cessna, and
at the time of trial the other Cessna was apparently still in Northern's possession. The
record does not contain any written agreement between Northern and Knik following
Northern's possession of the Cessnas, nor is there any type of written notice from
Northern to either Knik or Crowley. At trial Crowley contended Knik had overpaid its
obligation and was owed money on the Cessna loan.
3. Contracts between Wingnuts and NA Holdings
Wingnuts and NA Holdings entered into two written contracts and had an
ongoingbusiness relationship that resulted in Wingnuts incurringadebttoNAHoldings.
Wingnuts entered into a one-year lease with NA Holdings on July 1, 2013,
agreeing to rent office space and outside parking for up to four aircraft at the Palmer
Airport. The lease, obtained from an internet site, required arbitration of any
"controversy or claim relating to this contract."
Wingnuts also bought fuel from NA Holdings, often on credit. NA
Holdings sent Wingnuts statements that included not only the fuel costs but also
Wingnuts's rent and what appear to be charges for renting aircraft. Wingnuts fell behind
in payments.
Ultimately, "Bret[t] Crowley, DBA Wingnuts Aviation" signed a loan
document and a security agreement related to the delinquent account with NA Holdings.
Crowley signed the loan agreement in early May 2014, with a principal amount of just
over $38,800; monthly payments were to be made over five years. The agreement
contained a guaranty that Crowley and Wingnuts "unconditionally and personally
guarantee[d] all the obligations of the [b]orrower under this [n]ote." The security
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agreement gave NA Holdings a security interest in a Mooney airplane stated to be owned
"free and clear" by Chesnut and Crowley. The security agreement required Wingnuts
to "keep the collateral free from unpaid charges, taxes, and liens," to maintain insurance,
and to make all repairs needed to keep the collateral "in good working order and
condition."
Wingnuts continued to buy gas oncredit fromNAHoldings after theparties
signed the loan agreement secured by the Mooney airplane. The parties refer to this
ongoing debt as the "net 30" account. As of late October 2014, the unsecured net 30
account had a balance of a little less than $18,500 and was unsecured.
In August 2014 a student and Crowley did a "gear-up" landing at the
Wasilla Airport in the Mooney. The Mooney sustained damage to its propeller and body,
and Wingnuts missed its September 2014 payments. Neither Crowley nor Wingnuts
took steps to repair the Mooney promptly.
Discussions between Crowley and Helmericks became less cordial in the
following months, although the cause of the friction was disputed. Helmericks indicated
he was fed up with Crowley and Wingnuts, but Crowley contended that Helmericks had
inappropriately disclosed Crowley's personal financial information and also hoped to
prevent Wingnuts from moving its operations to Wolf Lake where Chesnut's father had
purchased a hangar.
In October 2014 Crowley and Helmericks exchanged numerous text
messages related to finances. The interpretation of the text messages was disputed, as
set out more fully below. On October 23 Crowley made a $19,000 cash payment to one
of Helmericks's businesses. The payment's disposition was also disputed: Helmericks
applied the cash first to the net 30 account and then credited the balance to the loan
secured by the Mooney; Crowley insisted he directed the payment to the Mooney-
secured loan. In November 2014 Crowley informed Helmericks that Wingnuts intended
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to move its base of operations to Wolf Lake. On December 2, 2014, Wingnuts gave NA
Holdings written notice that it was vacating its office space at the Palmer Airport as of
January 1, 2015.
The Mooney remained at the Wasilla Airport without its propeller, and in
June 2015 Helmericks removed the radio (or avionics) - the terms are used
interchangeably in the record - from the Mooney and took the equipment to his office.
According to Helmericks he visited the airport to look at the plane and observed that
someone had attempted to tape the window shut with duct tape but the tape had
weathered over the winter. He said the door was unlocked - Crowley disputed this -
so he entered the plane and removed the avionics. Someone reported the removal of the
avionics to Crowley, who contacted the police, who in turn contacted Helmericks.
According to Crowley, Helmericks told the police that he had the equipment in his office
and that he had removed it through the window of the plane.
In early November 2015 Chesnut completed an Application for
Airworthiness Certificate in an apparent attempt to get the Mooney repaired. According
to Crowley the permit was intended to get the Mooney to Wolf Lake so Wingnuts's
mechanic could fix it. Crowley intended to put a propeller on the plane and fly it to Wolf
Lake later that month. At about this time Helmericks removed the engine from the
Mooney and placed it with Walker, where it remained at the time of trial. Helmericks
testified that rather than litigate the return of the avionics, he "opted to leave them . . . in
the cupboard, where they were secure," and he agreed that his position at trial was that
he would release the engine and avionics to Crowley or Wingnuts if the debt was paid
in full. The City of Wasilla impounded the Mooney in December 2015 because of
unpaid fees. According to NA Holdings's closing argument at trial, the City of Wasilla
intended to dispose of the Mooney.
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B. Proceedings
1. Complaints and answers
In February 2015 Crowley, in his individual capacity and through counsel,
sued Northern for breach of contract and several other causes of action based on the
business transactions between Knik and Northern. Northern answered the complaint.
In early April 2015 Northern as a defendant and NA Holdings as a third-
party plaintiff filed a motion under Alaska Civil Rule 14 to allow a third-party complaint
1
against Knik, Wingnuts, and Crowley individually. Shortly after the motion was filed,
Crowley's attorney withdrew, citing a conflict of interest, and Crowley began to
represent himself. The court granted the motion to allow the third-party complaint in
June. The third-party complaint set out three different breach of contract claims: one for
the Cessna transactions, one for the lease agreement, and one for the Mooney-secured
loan. The fourth cause of action was for "delivery" of the Mooney. No summons was
2
issued related to the third-party complaint. Copies of the contracts were attached to the
third-party complaint, but the complaint itself did not set out a cause of action against
Crowley as an individual and only mentioned the Cessna loan guaranty.
Another attorney entered an appearance on behalf of Crowley in early
August. Crowley and Wingnuts, through counsel, answered the third-party complaint
against them in April 2016 and asserted several affirmative defenses, including the
1 No one questioned in the trial court or on appeal this unorthodox use of
Rule 14, so we do not discuss the appropriateness of the procedure.
2 See Alaska R. Civ. P. 14(a) (stating that a third-party plaintiff "may cause
a summons and complaint to be served upon a person not a party to the action who is or
may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the
third-party plaintiff").
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3 4
illegality of the repossessions. Wingnuts brought several counterclaims, including
breach of contract, replevin, interference with a prospective economic advantage, and
conversion against Northern and Helmericks individually, but it did not bring a cross-
5 The counterclaims mostly concerned actions taken with respect to
claim against Knik.
the Mooney, although the factual allegations included Northern and the repossession of
the Cessnas. Helmericks was not formally joined as a party, nor did anyone attempt to
join Walker as a party. 6 Northern answered the counterclaims. In later pleadings, the
attorney representing Northern and NA Holdings indicated that he represented
Helmericks as well, although he never formally entered an appearance. His closing
argument asked the court to award Helmericks and his businesses "the entire amount of
damages they have incurred."
2. Relevant motion practice
At the beginning of the case in early April 2015, Crowley, still represented,
3 Knik's status during the pendency of the case was unclear given that it was
never summoned or served with a copy of the complaint. The attorney representing
Crowley and Wingnuts indicated that he was submitting written closing and rebuttal
statements on behalf of Knik, although the signature blocks on these pleadings do not
reflect his representation, andhenever formally entered an appearance. Northern offered
no objection in the trial court to Crowley's attorney arguing on behalf of Knik, although
it phrased its rebuttal as though Crowley as an individual, rather than Knik, had made the
arguments.
4 See Alaska R. Civ. P. 13(a)-(c) (distinguishing compulsory and permissive
counterclaims and allowing counterclaims different in kind or amount from original
claim).
5 See Alaska R. Civ. P. 13(g) (allowing cross-claim against a co-party that
arises out of same transaction that is subject of original action or counterclaim).
6 See Alaska R. Civ. P. 13(h) (allowing joinder of other parties under Alaska
Rules of Civil Procedure 19 and 20).
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filed a motion under Alaska Civil Rule 88 for the Cessnas' return, arguing that he was
not in default on the loan agreement because, even though his payments had not been
regular, he had paid more on the account than he owed up to the time of repossession and
had in fact made a loan payment after the repossession. Northern opposed the motion
and raised as a defense Crowley's lack of standing to assert Knik's rights. At the hearing
on the motion, the trial court noted Northern's objection but allowed Crowley to proceed
for purposes of the hearing in an effort to ascertain whether he (or Knik) had any
colorable claim for the aircraft. At the conclusion of the hearing the court denied
Crowley's motion because he had not met his burden of showing either the probable
validity of his claim to the property or the "absence of any reasonable probability that a
7 by Northern.
successful defense [could] be asserted"
In early July 2015 Northern filed a motion for summary judgment on all of
the claims in Crowley's complaint based on lack of privity, arguing that the contract
underlying the original complaint was between Northern and Knik, not Crowley
individually; because he was not a party to the contract, Northern argued, Crowley could
not assert in his individual capacity any of the claims made in his complaint. The trial
court notified the parties in October 2015 that it intended to grant the motion for
summary judgment but, recognizing that Crowley had been self-represented for several
months while the motion was pending, it gave him 15 more days to file an opposition.
Crowley, through counsel, ultimately responded that he would "not assert a personal
breach of contract claim," noted that Northern had filed a third-party complaint against
Knik, and concluded that he did not oppose summary judgment. He argued the summary
judgment motion should affect "only Count I, and possibly Count II" of the initial
complaint and represented that he would "in short order" submit "a pleading cleaning up
7
Alaska R. Civ. P. 88(d).
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his claims." The court then gave the parties notice that it intended "to grant summary
judgment dismissal" on all counts in the initial complaint unless Crowley filed an
opposition or amended his pleadings by mid-March 2016. When Crowley did neither,
the court granted summary judgment and dismissed all claims in Crowley's initial
complaint.
In July 2015 NA Holdings asked the court to order delivery of the Mooney
to it pursuant to the security agreement. At the same time Northern asked the court to
order Crowley to deliver the logbooks and keys to the Cessnas as well as "any additional
documents required for registration" of those aircraft. In October 2015 the court issued
an order inviting NA Holdings and Northern "to resubmit the affidavits attached to these
motions to correct deficiencies" in them. They never did. In late October the parties
stipulated that the logbooks, keys, and registration to the Cessnas were in Northern's
possession. Apparently nothing else was filed related to the Mooney because the trial
court deemed the motion related to the Mooney moot in January 2016.
3. The trial
The trial court held a bench trial over three days in June 2016. Helmericks,
Crowley, Chesnut,and Helmericks's sonBrandon, who kept thebooksfor thebusinesses
and generally kept track of business during the winter, were the only witnesses. Because
the parties did not clearly segregate their business transactions related to the various
contracts, the evidence presented at trial at times was relevant to more than one cause of
action.
The trial testimony suggested that the parties did not strictly adhere to the
written contracts they had made. For example, the parties agreed they had discussed
alternatives to the insurance requirement for the Cessnas: Helmericks testified that the
cost of commercial aviation insurance was "almost prohibitive," so instead of insurance
he would be satisfied with a CD in Northern's name in the amount of the loan balance
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or with Crowley putting some of Chesnut's "securities" in a similar arrangement.
Crowley understood that no insurance was required but that he, Wingnuts, or Knik
would be responsible for any damage to the Cessnas. He said that based on his
conversations with Helmericks, he did not think he ever needed "independent third-party
insurance." There is also ample evidence in the record that Northern accepted late
payments and partial payments from both Knik and Wingnuts.
With regard to the loan and repossession of the Cessnas, the parties
disputed whether Knik was in default at the time of the repossession. Helmericks
testified that Knik was in default by not having any insurance on the Cessnas, by
improperly using the planes, by failing to maintain the aircraft, and by not making loan
payments on time. He said that "[t]he deficiency with the loan - with the payments was
their . . . irregularity, not their amount." Crowley testified that: (1) Knik overpaid the
amount due on the loan as of December 2014; (2) Northern waived the insurance
requirement; and (3) Knik properly maintained the aircraft. Crowley did not dispute that
Knik had not consistently adhered to the payment terms of the loan, but he noted that
Northern continued to accept payments without objecting and in fact accepted a payment
after it took possession of the Cessnas. Helmericks acknowledged that Northern was
inconsistent in charging late fees and agreed that Crowley, evidently through Wingnuts,
had made an additional payment on the Cessna loan on behalf of Knik in December
2014, after the planes were in Northern's possession. Helmericks indicated he was
aware of conflict within Knik between Crowley and Walker about "the direction the
business was going" when Walker assisted Helmericks in securing the Cessnas.
Although Helmericks first said there was a balance remaining on the Cessna loan, he
later agreed that Northern had not been damaged by any of the breaches of the Cessna
contracts, calling the claimed damages of over $8,000 in his businesses' trial brief "an
error."
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With respect to the disputes between Wingnuts and NA Holdings, the
partiesoffered sharply conflicting testimony about the allocation ofthe$19,000payment
Crowley made in late October 2014. At that time Wingnuts was not current in the
Mooney-secured loan payments and owed more than $18,000 on the net 30 account.
Crowley contended that he instructed NA Holdings to use the $19,000 for the Mooney-
8 He evidently
secured loan, effectively prepaying the loan through sometime in 2016.
did not intend any of the funds to apply to the net 30 account balance. Two invoices
dated October 24, 2014 show that on October 23, $18,430.63 was credited to the net 30
account and $569.37 was credited to the Mooney-secured loan account. Helmericks
testified that Crowley and Wingnuts owed $42,678.34 on the Mooney-secured loan at
the end of May 2016.
Helmericks and Crowley, in rebuttal and surrebuttal, offered into evidence
a series of text messages they had exchanged relevant to the debts and this cash payment.
On October 18 Helmericks texted to Crowley: "Loan Balance As of today, October
18th: Airplanes $69,538.18 Loan $37,626.04[.] Apply payments to the open net 30
account first, the unsecured debt next and the secured debt last. Any questions, text or
call me." (Emphasis in original.) According to Crowley, this text message was sent to
both Crowley and Brandon. Brandon, the bookkeeper for NA Holdings, said he usually
took direction from Crowley about how payments were to be applied to the different
accounts and agreed that the allocation of the payment to the net 30 account first was not
8 This calculation was based on Crowley's interpretation of the agreement's
prepayment clause. Crowley testified that he understood the prepayment clause to allow
him to make a large payment at times when he had a lot of income, such as the summer,
so that he would not need to worry about making the minimum payments when he had
little income. Helmericks had a different interpretation, indicating that NA Holdings
applied any amount paid over the minimum payment to the principal balance but
required a minimum payment every month.
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an agreement Crowley had with him directly. The next day Crowley texted only to
Helmericks, "All of the cash has not come in yet. I am going to start with the
outstanding balance for Wingnuts and Knik. Then hopefully Wednesday or Thursday
we will get the two loans done. I'm sorry for the delay, but I haven't even gotten the
cash yet."
The parties then texted about a payment on the Cessnas, and on October 23
Helmericks texted Crowley, "Do you have a timeline for the two loan payoffs yet?"
Crowley responded that he would talk to Helmericks the next day. On October 28
Crowley texted Helmericks that he had deposited $19,000 in Helmericks's account.
After some back and forth about whether thedeposit had actually been made, Helmericks
informed Crowley that the bank "found it" and told Crowley that the problem with
payments was "one of the primary reasons [he couldn't] continue funding [Crowley's]
venture."
Helmericks initially disputed the existence of the October 18 text; he
asserted that the October 19 text message from Crowley referred to the allocation of the
$19,000 payment. Helmericks testified that "the two loans" referred to the Mooney-
secured loan and the Cessna loan. He agreed that this text "confirmed" his position that
the "revolving account was to be paid first." In contrast Crowley interpreted his
statement in the October 19 text that he was "going to start with the outstanding balance
for Wingnuts and Knik" as an instruction to Helmericks to apply the money to the two
secured loans first and not to the net 30 account as Helmericks had proposed in the
October 18 text. Crowley points to no testimony or other evidence indicating he
complained to NA Holdings about the allocation of the large cash payment at that time,
and the record indicates that Wingnuts made another payment on the Mooney-secured
loan in November 2014.
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Helmericks and Crowley also disagreed about how to characterize the
removal of the engine and the avionics from the Mooney. Helmericks denied that he
ever repossessed the Mooney, asserting that he was protecting the collateral when he
took these parts of the plane. Crowley called it a repossession. The parties apparently
agreed that neither Northern nor NA Holdings gave any written notice prior to or after
the repossessions; there is no documentation of any written notice in the record. And
Helmericks indicated that the avionics remained in his office and the engine remained
in Walker's hangar, apparently under Helmericks's control. Helmericks offered no
testimony that he had attempted to sell the seized parts; instead, he agreed he would
return them to Crowley if Wingnuts paid whatever it owed to him under the loan
agreement.
Thepartiessubmittedsimultaneous written closing argumentsandrebuttals.
Crowley's attorney included arguments on behalf of Knik as well as Wingnuts and
Crowley, and the attorney who represented Helmericks's LLCs filed a written closing
on behalf of Northern, NA Holdings, and Helmericks individually. Helmericks did not
object to Crowley's attorney making a closing argument on behalf of Knik; he responded
substantively to the arguments.
In closing Northernsummarilyarguedthat Knikbreachedits contracts with
Northern and that Northern was damaged by the breaches, although it did not identify
any damages and argued that Northern had mitigated damages "following its
repossession of the planes, and therefore did not present additional evidence related to
post-repossession damages." Northern asked for an award of nominal damages. NA
Holdings asked for damages related to the lease agreement as well as $42,967.87 for the
Mooney-secured loan; it argued that it had properly allocated the $19,000 cash payment.
Finally Helmericks asserted the Mooney might have "little value" in light of the fees
charged by the City of Wasilla but asked the court to transfer title to the Mooney to him
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in light of "liabilities associated with the possession of the abandoned aircraft."
Crowley and his LLCs argued that Knik was current in its payments and
not only was not in default of the loan agreement at the time Northern took possession
of the Cessnas but in fact had overpaid its obligation. As to the security agreement,
Crowley argued that Helmericks had waived the insurance requirement and had
presented no evidence that Knik failed to maintain the Cessnas. Wingnuts pointed to the
lease's arbitration clause and asked the court to dismiss the claim. Wingnuts argued that
Crowley had directed the $19,000 cash payment to be applied to the Mooney-secured
loan, relying on the text messages and what he called a "historical understanding and
practice of how payments were prioritized." Wingnuts concluded that it was not in
default of the loan agreement in either November 2014 or June 2015, and it argued that
Helmericks's seizure of the engine and avionics were thus impermissible.
Wingnuts set out the evidence presented about its attempts to have the
Mooney repaired, including the application to allow it to fly the plane to Wolf Lake for
repairs. It denied that the Mooney had been "abandoned" and asked the court to take
judicial notice that as of June 2015, when Helmericks removed the avionics from the
Mooney, he had already asserted a judicial claim for the Mooney and "[t]he matter was
then before th[e] [c]ourt." Wingnuts also contended that abandonment was "not a
specified basis for executing the Security Agreement" and that the seizure of the avionics
"not only rendered the plane inoperable . . . but was both improper and illegal."
The court issued its decision in December 2016, concluding it had no
jurisdiction over the lease dispute because of the mandatory arbitration clause. The court
found that Crowley disputed the legality of the repossession of the Cessnas and claimed
damages on behalf of Wingnuts, but "offered no evidence that in fact Wingnuts was
damaged." It faulted Wingnuts for failing to include Knik as a co-defendant in the action
it had brought against Helmericks and Northern and for neglecting to provide evidence
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about Walker's authority to act on behalf of Knik. The court found that the testimony
showed Helmericks did not waive the requirement for insurance and "expected Knik to
at a minimum buy a CD in Northern Aviation's name or pledge sufficient securities."
The court observed that the security agreement "states that notice shall be
9 and cited a provision from AS 45.29 that the superior court said
in writing if required,"
"require[d] notice prior to disposition of property seized pursuant to AS 45.29.609." The
court found that Crowley did not "claim harm due to the lack of notice" and decided the
lack of statutory notice was "harmless in this sequence of events." The court did not
discuss Crowley's claim that Knik had overpaid on the loan and was thus owed money.
The court found that Northern failed to produce evidence that Knik had not
maintained the aircraft, and it further found that Knik was current in its payments at the
time of repossession. It found that Northern failed to show any damages arising from a
breach of the contracts related to the Cessnas and that Walker's conduct in assisting to
secure the Cessnas mitigated any potential damages. The court held that Northern met
its burden of showing that Knik had breached the security agreement by not insuring the
Cessnas but concluded that Northern "failed to show that Knik breached the loan or
security agreement due to late payments or a failure to maintain the aircraft."
Turning to NA Holdings's claims against Wingnuts, the court interpreted
the text messages in a way that neither party had advocated. The court decided that
Crowley's intent was to allocate enough of the payment to the Mooney-secured loan to
make it current, thereby curing Wingnuts's default. After that, the court decided,
Crowley intended to direct the remainder of the $19,000 to the net 30 account. Of the
$19,000, the court allocated $2,580.82 - the amount it determined that Wingnuts was
9
A provision stated that "[a]ny notice required to be given under this
Agreement" was to be in writing.
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in arrears - to the Mooney-secured loan. The court calculated the amount due on the
Mooney-secured loan but did not appear to base its calculations on evidence in the trial
record; the court cited an exhibit to which both parties referred at trial but which was not
admitted as evidence. The court found that NA Holdings "had a right to seize the radios
and engine pursuant to AS 45.29.609" and found that "any failure to comply with the
notice requirement" of AS 45.29 was either "irrelevant or harmless."
The court further decided that NA Holdings could recover damages of over
$33,000 and that it was "legally entitled to the possession and ownership of the Mooney
to satisfy the remaining debt owed by Wingnuts." It ordered NA Holdings to comply
with the notice requirements of AS 45.29 in its disposition of the aircraft and parts. The
court found against Wingnuts and Crowley on all of their counterclaims and entered final
judgment for over $33,000 plus interest in favor of NA Holdings and against Wingnuts
and Crowley (individually); it issued adeclaratory judgment awarding NA Holdings title
to the Mooney. The court did not explain the basis for its entry of judgment against
Crowley as an individual, simply saying in a footnote, "The judgment will also enter
against Brett Crowley in his individual capacity."
Wingnuts, Crowley, and Knik appeal.
III. STANDARD OF REVIEW
We review a superior court's findings of fact under the clearly erroneous
standard; a finding of fact is clearly erroneous if after reviewing the record we are left
10 Under Alaska Civil
with a definite and firm conviction that a mistake has been made.
Rule 52(a), the superior court is required to make findings of fact and conclusions of law;
those "findings and conclusions should be so clear and explicit as to give [this] Court a
10 Stanton v. Fuchs, 660 P.2d 1197, 1198 (Alaska 1983).
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11
clear understanding of the basis for the decision made." When the superior court's
12
findings are inadequate, we remand the case for further findings.
"Questions regarding
the interpretation and application of a statute are questions of law to which we apply our
13
independent judgment."
IV. DISCUSSION
A. The Superior Court Did Not Clearly Err In Finding That Knik Was
In Default And That Failure To Provide Notice Before Repossessing
The Cessnas Was Harmless.
On appeal Knik contends that the superior court erred in finding that Knik
breached the security agreement by failing to insure the Cessnas. It argues that Northern,
through its sole member, Helmericks, waived the insurance requirement and thus waived
its ability to repossess the aircraft on that basis. Knik further contends that Northern was
required to provide written notice of the alleged breach before it could rightfully
repossess theCessnas. In responseNorthernmaintains that Crowley cannot assert claims
on behalf of Knik (as the superior court decided14) and that even if he could, the superior
court's finding that there was a breach of the security agreement is not clearly erroneous.
Northern does not discuss the notice issue.
11 Sullivan v. Subramanian , 2 P.3d 66, 69 (Alaska 2000).
12 See, e.g. , Ilardi v. Parker , 914 P.2d 888, 892-93 (Alaska 1996) (remanding
for further findings).
13 State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007).
14 The superior court order on which Northern relies dealt only with
Crowley's standing as an individual to bring an affirmative lawsuit for breach of contract
against Northern. The trial court did not explicitly decide whether Crowley could, as a
member of Knik or as a guarantor, raise arguments on behalf of Knik in defending
against Northern's third-party lawsuit.
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Knik's status in the trial court is difficult to discern because Knik was never
served with a summons and complaint and never answered or formally appeared in the
15 But judgment
trial proceedings, even if it may have been included in closing argument.
was entered against Knik, and its status in this appeal is not ambiguous. The notice of
appeal filed in this court lists Knik as an appellant and shows that it is represented by the
same attorney who represents Crowley and Wingnuts. Knik clearly can appeal a
judgment entered against it under these circumstances.
The trial court determined that Helmericks acted with Walker's consent
when he took possession of the Cessnas. Walker, one of the members of Knik, actively
participated in the surrender of at least one Cessna to Northern. Crowley did not
explicitly argue in the superior court, and neither he nor Knik argues on appeal, that
Walker lacked the authority to act on Knik's behalf in surrendering the Cessnas. Knik
asserts on appeal that it does not seek return of the collateral. Because Knik does not
seek return of the Cessnas and because Crowley and Wingnuts did not appeal the
superior court's decision that they failed to prove any of their claims against Northern
(or their putativeclaims against Helmericks), we agree with thesuperiorcourtthat failure
to give any notice before action on the alleged default in this case was harmless.16
15 See supra notes 2 and 3 and accompanying text.
16 Crowley's claim that notice was required appears to be based on our
precedent about waiver, but his argument does not clearly articulate why pre-
repossession notice was required here. Two of our prior cases have discussed notice in
the repossession context when waiver is alleged. See Alaska Statebank v. Fairco, 674
P.2d 288, 292-93 (Alaska 1983) (affirming trial court decision that pre-repossession
notice was necessary when creditor's conduct and oral statements modified contract);
Kupka v. Morey, 541 P.2d 740, 746 (Alaska 1975) (holding that creditor could not base
default on failure to insure airplane when creditor had obtained insurance pursuant to one
contract provision but failed to inform debtor of insurance cancellation).
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Turning to Crowley's argument that Knik was not in fact in default and his
17
consequent argument that Northern had no right to possession of the Cessnas, Crowley
presented no evidence that Knik had ever insured the Cessnas; his defense was that
Helmericks did not insist on insurance coverage. But Crowley also failed to show that
Knik complied with any of the alternatives to commercial insurance that Helmericks
claimed the parties had discussed. The trial court resolved any conflict between his
testimony and Helmericks's in favor of Helmericks. As a result, we affirm the superior
court's determinations that Knik breached the security agreement by failing to insure the
Cessnas and that any failuretogivenotice before repossessing the Cessnas was harmless.
B. It Was Error Not To Address The Question Of An Overpayment On
The Cessna Loan And To Find That Northern's Failure To Give
Notice Of Disposition Was Harmless.
In the final judgment, the superior court cited parts of the Uniform
18
Commercial Code (U.C.C.) - Secured Transactions, in particular the provision
19
mandating notice before a secured creditor disposes of collateral in its possession. The
court wrote that Helmericks agreed he had not provided any written notice and that
Crowley did "not claim harm due to the lack of notice." It then found that the lack of
written notice was more likely than not harmless. The superior court never addressed
Crowley's argument that Northern owed Knik money for the Cessna loan.
Because neither party mentioned the statutory sections related to secured
transactions in the trial court, the superior court did not have the benefit of the parties'
17 See AS 45.29.609 (allowing secured party to take possession of collateral
after default).
18 AS 45.29.101-.811.
19 See AS 45.29.611-.614.
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advocacy to better understand the impact of the law on this case. 20 While the superior
court applied to this case parts of AS 45.29.101-.811, as set out more fully below, its
finding that Northern's failure to give notice of disposition of the collateral was harmless
error lacks evidentiary support and must be reversed.
Alaska Statutes 45.29.611-.613 prescribe the notification requirements for
21 Walker's
a secured creditor to use when disposing of collateral in its possession.
surrender of the collateral to Northern, the secured creditor, gave Northern the authority
to dispose of the collateral and apply the proceeds to the balance of the debt secured by
the Cessnas.22 Under AS 45.29.610(b), Northern was required to act in a commercially
reasonable manner in "[e]very aspect of a disposition of collateral, including the method,
manner, time, place, and other terms." Additionally, Northern was required to provide
notice of disposition of the property to both the debtor (Knik) and any secondary
obligors.23 After disposition Northern was required to pay any surplus to Knik; if a
20 Northern brought its claim as a breach of contract action, but by retaining
the Cessnas and disposing of at least one without litigation, Northern availed itself of
secured creditors' statutory remedies. AS 45.29.609-.610. The security agreement gave
Northern "the remedies of a Secured Party under the law" and contains a provision that
the agreement is to be construed in accordance with Alaska law. Alaska
Statutes 45.29.101-.811 govern secured transactions in Alaska and apply to this case.
21 Rules for notice in consumer transactions are found in AS 45.29.614.
22 AS 45.29.610, .615.
23 AS 45.29.611(b)-(c). As a guarantor under the security agreement,
Crowley may have had the status of a secondary obligor. See AS 45.29.102(a)(90). Not
all guarantors are secondary obligors. See U.C.C. § 9-102(a)(71) & cmt. 2(a), 3 U.L.A.
62, 65-66 (2010) (explaining addition of "secondary obligor" to revised Article 9). But
secondary obligors have specific rights under AS 45.29, including some rights to notice,
see AS 45.29.611(b)-(c), as well as the ability to raise defenses in an action related to a
deficiency, see AS 45.29.626.
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deficiency remained after disposition of the collateral, Northern could bring an action for
24
a deficiency judgment.
We have previously discussed the consequences of failing to
provide proper notice prior to disposing of collateral: when a secured creditor fails to
comply with statutory notice requirements, a presumption exists in a later deficiency
25
action that the collateral's value is at least equal to the amount of the outstanding debt.
While Northern's third-party complaint did not clearly set out a claim for
a deficiency judgment, by the time of trial Northern had disposed of at least one Cessna
but still sought damages of over $8,000 - in other words, Northern apparently sought
a deficiency judgment.26 Northern also made allegations related to Crowley's status as
a guarantor under the Cessna loan agreement in its third-party complaint. Crowley, in
contrast, claimed that Knik was not in default as to payments at the time Walker
surrendered the Cessnas and that Northern in fact owed Knik money because of
payments made after repossession of the Cessnas. The superior court agreed with
Crowley that Knik was not in default in payments at the time Northern took possession
of the planes and decided Northern had not shown a breach of the agreement by failing
to maintain the aircraft. But the court made no findings about Crowley's assertion that
Northern owed Knik money.
Knik and Crowley contend that the superior court erred in failing to order
Northern to provide some type of accounting about any surplus or deficiency resulting
24 AS 45.29.615.
25 Hoch v. Ellis , 627 P.2d 1060, 1062-63 (Alaska 1981); see also Dischner
v. United Bank Alaska, 631 P.2d 107, 110 (Alaska 1981) (holding that presumption that
actual value of collateral is equal to amount of outstanding debt may be rebutted by clear
and convincing evidence).
26 See AS 45.29.626 (setting out burdens of proof in actions where deficiency
or surplus is in issue).
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from disposal of the collateral because Crowley presented evidence at trial that he or
Knik made payments on the Cessna loan after the planes were repossessed. Knik and
Crowley also argue that the superior court erred in finding lack of notice harmless.
Northern maintains only that Crowley cannot assert arguments on behalf of Knik,
contending that Crowley's guaranty "does not give him the ability to assert claims
against [Northern]"; it does not respond to arguments about the application of AS 45.29.
Northern's argument is not detailed, but its position that Crowley, as
guarantor, cannot assert claims against Northern may be incorrect. We assume that
Northern intended to obtain a judgment against Crowley individually in his capacity as
a guarantor of the Cessna loan; we see no other explanation for Northern's allegations
27 As a
related to Crowley's personal guaranty of that loan in its third-party complaint.
guarantor, Crowley may have been a secondary obligor and therefore able as an
individual to assert defenses available to secondary obligors.28 But even if Crowley is
not a secondary obligor, Northern does not argue convincingly that he could not in the
trial court assert defenses on behalf of Knik, one of the parties Northern sued when it
filed its third-party complaint.
Northern seemingly acquiesced in the trial court to Crowley's assertion of
defenses related to Knik: it did not object and offered substantive responses to
arguments Crowley (or possibly Knik) made about the Cessna loan. We have already
noted Knik's status as a party who was never served with a summons.29 Northern asks
that we affirm the judgment entered in this case but does not explain who represented
27 As we observed earlier, the complaint fails to set out explicitly a cause of
action against Crowley as an individual. See supra p. 7.
28 See supra note 23.
29 See supra notes 2 and 3.
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----------------------- Page 24-----------------------
Knik's interests at trial if Crowley did not or why it could rely on the actions of one
member of Knik - Walker - to justify its possession of the Cessnas while
simultaneously arguing that Crowley, the other member of Knik, cannot assert defenses
to the loan on Knik's behalf.
The trial court made no findings about the disposition of the Cessnas or
about Northern's application of the proceeds to the loan balance. Helmericks testified
that one Cessna had been sold, evidently after some refurbishing. The record has no
information about the sale price of that Cessna, the cost of any work done to prepare it
for sale, or the commercial reasonableness of Northern's actions; the record is silent
30 With no information about the actual
about the disposition of the second plane.
disposition of the collateral, it is impossible to ascertain whether Northern could
overcome any presumption about the Cessnas' value and whether there was a surplus or
deficiency on the loan.
There is no evidence of any written notice to Knik, Crowley, or Walker in
the record, and Northern does not on appeal dispute the superior court's finding that
Helmericks agreed he did not provide written notice. A debtor has an interest in ensuring
that collateral is sold for as much as possible in order to minimize any deficiency, and
notice of the sale can allow a debtor to help publicize the sale.31 Additionally, both
debtors and secondary obligors have a right to redeem repossessed collateral, but that
30 A sale is not the only way a creditor can dispose of collateral. See
AS 45.29.610(a) (permitting secured party to "sell, lease, license, or otherwise dispose"
of collateral after default).
31 Cf. Kobuk Eng'g &Contracting Servs., Inc. v. Superior Tank &Constr. Co.
Alaska , 568 P.2d1007, 1011-12 (Alaska 1977) (holding that creditor's sale of equipment
to itself with little notice and for substantially less than it obtained weeks later from
another buyer was not commercially reasonable).
-24- 7361
----------------------- Page 25-----------------------
32
right must be exercised before the creditor disposes of it. Notice of disposition thus
serves an important function in the repossession context. Because of the dearth of
information about disposition of the planes, we are unable to evaluate whether the failure
to give notice of that disposition was harmless as the superior court found.
Crowley asserted in the superior court that Knik had overpaid its loan
obligation, bringing into question whether Northern owed Knik money. The superior
court did not mention this argument in its decision. Because the record has virtually no
information about disposition of the Cessnas, we cannot evaluate the superior court's
finding that failure to give pre-disposition notice was harmless. We thus reverse the
superior court's finding that Northern's failure to provide notice as required by
AS 45.29.611-.613 was harmless and remand to the superior court for further
proceedings about disposition of the Cessnas and Crowley's claim that Knik is owed a
surplus.
C. The Superior Court's Finding That Wingnuts Was In Default And Its
Interpretation Of The Text Messages Were Not Clearly Erroneous.
Crowley and Wingnuts contend that Wingnuts was not in default on the
security or loan agreements and conclude that NA Holdings had no right to possess the
Mooney. They argue extensively that the superior court's interpretation of the text
messages about the $19,000 payment was clearly erroneous. They assert that the
superior court's statement that Crowley had left the Mooney "to rot" did not take into
account Crowley's purchase of a propeller for the plane. NA Holdings responds that the
trial court's interpretation of the text messages was correct and that it had a right to
possess the Mooney.
32
AS 45.29.623.
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----------------------- Page 26-----------------------
Crowley made a $19,000 deposit to an account owned by one of
Helmericks's LLCs in late October 2014. Crowley relies on the parties' "history . . .
over their several agreements," a notation on Wingnuts's bank records, and a series of
text messages the parties exchanged during the two weeks before the $19,000 deposit to
support his argument that he allocated this deposit to the Mooney-secured loan. None
of these sources shows that Crowley gave clear instructions to Helmericks or NA
Holdings to apply the deposit primarily to that loan. First, there is no evidence that the
notation on Wingnuts's bank records was ever communicated to Helmericks or NA
Holdings before Crowley made the deposit, so it cannot possibly have served as an
instruction to Helmericks or his LLCs. Nor does the parties' "history" show a clear
intent that the money be used to satisfy and pay forward the Mooney-secured loan; this
argument relies exclusively on Crowley's testimony, but the trial court credited
Helmericks's testimony over his.
Crowley's intent in allocating the payment solely to the Mooney-secured
loan when he sent the text messages is not, as he claims, "clear," and we disagree with
his assertion that there is only one way to interpret these messages. While the superior
court interpreted the text messages in a way that neither party advocated, its
interpretation is not clearly erroneous. Helmericks provided Crowley with the loan
balances for the two secured debts as of October 18 and indicated he would apply any
payments to the net 30 account first and the secured debt last. Crowley responded that
he was going to "start with the outstanding balance for Wingnuts and Knik" and then
"hopefully Wednesday or Thursday we will get the two loans done." Crowley's text
implies that he was waiting for more money.
The superior court interpreted Crowley's response as directing Helmericks
to allocate enough money to the Mooney-secured loan to bring that loan current. The
superior court noted that Crowley made a separate payment to bring Knik's loan current
-26- 7361
----------------------- Page 27-----------------------
and reasoned that Crowley anticipated paying off the two loans from other sources. The
court decided that any money remaining after the Mooney-secured loan was made
current should go to pay the net 30 account. This interpretation is not clearly erroneous:
it accounts for ambiguities in the messages and takes into account the background events
at the time the messages were exchanged. 33
The interpretation of the text messages was only one part of the superior
court's analysis of Wingnuts's default. The superior court also discussed the "gear-up"
landing in August 2014 and the subsequent delay in attempting to repair the Mooney
aircraft. The security agreement related to the Mooney required Wingnuts to make all
repairs necessary "to maintain [the Mooney] in good working order and condition."
Even if Crowley bought a replacement propeller as he argues, he took no steps to
promptly repair the Mooney. It is uncontested that the Mooney was still at the Wasilla
Airport when Helmericks removed the avionics in June 2015, almost a year after the
"gear-up" landing. Wingnuts was thus in breach of the security agreement's provision
that the collateral be maintained "in good working order and condition" when
Helmericks seized the avionics.
The superior court's finding that Wingnuts was in breach of the loan and
security agreements was not clearly erroneous. The court's interpretation of the text
messages and allocation of the payment was also not clearly erroneous, and Wingnuts
failed to maintain the Mooney as required in any event.
33 We reject Crowley's argument that the superior court erred as a matter of
law in its analysis. The superior court's discussion suggests that it was attempting to
discern Crowley's allocation instructions from an ambiguous text. Given the lack of
clarity, the superior court reasonably evaluated the parties' credibility to determine the
text messages' meaning.
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----------------------- Page 28-----------------------
D. The Superior Court Must Make Additional Factual Findings About
The Repossession Of The Mooney With Respect To A Breach Of The
Peace.
Crowley and Wingnuts raise on appeal the question whether Helmericks's
actions in removing the avionics and engine fromthe Mooney constituted a breach of the
peace under AS 45.29.609, making the repossession illegal. NA Holdings does not
respond to this argument.
Neither party cited the U.C.C. in the superior court. Nonetheless, the
superior court found that "Helmericks had a right to seize the radios and engine pursuant
to AS 45.29.609." Alaska Statute 45.29.609 permits a secured party to take possession
of collateral after default without judicial process "if it proceeds without breach of the
34
peace."
Here the parties offered different accounts of certain facts which might prove
important in deciding whether Helmericks's removal of the avionics and engine violated
AS 23.30.609's directive, such as whether the plane was locked when the avionics were
35
removed.
With no factual determinations to review, we are unable to evaluate whether
Helmericks's actions in removing the engine and avionics were done in breach of the
peace.
The superior court also did not explain why removal of only parts of the
collateral was commercially reasonable, despite conflicting testimony by the parties
34 We have not been called upon to clarify what constitutes a breach of the
peace under AS 45.29.609(b); "breach of the peace" was left undefined by the U.C.C.'s
drafters, "leaving that matter for continuing development by the courts." U.C.C. § 9-609
& cmt. 3, 3 U.L.A. 671-72 (2010). As Wingnuts and Crowley assert, there is
considerable case law on this subject from other jurisdictions, and it is not uniform.
35 See Madden v. Deere Credit Servs., Inc., 598 So. 2d 860, 866 (Ala. 1992)
("The creditor's privilege is most severely restricted when repossession can be
accomplished only by the actual breaking or destruction of barriers designed to exclude
intruders.").
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----------------------- Page 29-----------------------
about that question, or why Helmericks's retention of the collateral with no apparent
effort to dispose of it was commercially reasonable.
Because the breach of the peace issue could affect the legality of the
Mooney's repossession and thus the evaluation of damages, we vacate the superior
court's judgment against Wingnuts and Crowley as well as its order transferring title to
the Mooney and remand to the superior court for further proceedings.
E. The Superior Court Must Explain The Basis For The Judgment
Against Crowley Individually.
Crowley contends that the judgment entered against him as an individual
should not stand because the Mooney-secured loan was an obligation of Wingnuts, an
LLC, and NA Holdings offered no evidence or argument to support piercing the
corporate veil. NA Holdings contends that the judgment against Crowley as an
individual was based on his status as a guarantor of the Mooney-secured loan.
Thesuperior court did not explainwhy it entered judgmentagainst Crowley
"in his individual capacity" for the Mooney-secured loan - it merely stated it would do
so in a footnote. Because we are presented with conflicting legal theories and no way
to determine the basis for the superior court's decision, we vacate the judgment against
Crowley in his individual capacity and remand this issue to the superior court.
V. CONCLUSION
We AFFIRM the superior court's finding that failure to give Knik Aircraft
Leasing notice of default prior to repossession of the Cessnas was harmless; we also
AFFIRMthesuperiorcourt'sinterpretationofthetext messagesbetween Helmericks and
Crowley. We REVERSE the superior court's decision that Northern Aviation's failure
to provide notice of disposition of the Cessnas was harmless. We VACATE the superior
court's decisions about the repossession of the Mooney, its entry of judgment on the
Mooney-secured loan, and its entry of judgment against Crowley in his individual
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----------------------- Page 30-----------------------
capacity. We REMANDthis case to the superior court for further proceedings consistent
with this opinion.
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