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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenneth M. Duffus v. Lee E. Baker, Jr. , Lee E. Baker, Jr. v. Kenneth M. Duffus (7/15/2022) sp-7602
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH M. DUFFUS, )
) Supreme Court N
os. S-17873/17893
Appellant and )
Cross-Appellee,
) Superior Court No. 3AN-13-05596 CI
)
v.
) O P I N I O N
)
LEE E. BAKER JR.,
) No. 7602 - July 15, 2022
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jennifer Henderson, Judge.
Appearances: Adam Cook, Birch Horton Bittner & Cherot,
Anchorage, for Appellant/Cross-Appellee. Michael
Bedinger, Jones Bedinger, LLC, Anchorage, for
Appellee/Cross-Appellant.
Before: Winfree, Chief Justice, Maassen, Carney, and
Borghesan, Justices. [Henderson, Justice, not participating.]
WINFREE, Chief Justice.
I. INTRODUCTION
Alimitedliability company (LLC) member sold his LLCinterest to another
LLC member as part of a settlement agreement, under which funds were to be paid to the
selling member and his attorneys. A judgment creditor of the selling member sought a
charging order against the settlement funds; meanwhile, the selling member's attorneys
----------------------- Page 2-----------------------
filed an attorney's lien against the same funds. The superior court granted the charging
order and enforced the attorney's lien, resulting in partial recoveries for the judgment
creditor and the attorneys. The judgment creditor appeals, arguing that the attorney's
lien was invalid, or, if valid, should have been prioritized beneath his charging order.
The selling member cross-appeals, arguing that the charging order was invalid and, if
valid, should have been prioritized beneath the attorney's lien. Because evidentiary
issues prevent us from determining the validity or extent of the charging order and lien,
we remand for the superior court to conduct the appropriate evidentiary inquiries.
II. LEGAL BACKGROUND OF LIMITED LIABILITY COMPANIES
The LLC is a relatively new form of business organization combining
1
limited liability features ofcorporations with taxtreatment ofgeneral partnerships. LLC
members enjoy a measure of immunity from personal liability for the LLC's actions and
liabilities while also benefitting from pass-through taxation, meaning that the LLC's
2
income generally is not taxed separately before "passing through" to its members.
3
Alaskans have been able to use this hybrid form of business organization since 1995.
1 Joseph P. Briggett, The Rights of a Judgment Creditor Against an LLC,
Under Various States' Charging Order Statutes , 39 R EV. B ANKING & F IN. L. 277, 284,
292-93 (2019); John Dwight Ingram, Limited Liability Companies , 6 F LA. S TATE UNIV .
US. L. REV. 1, 6-7 (2007); Katherine Quigley, Converting to a Limited Liability
B
Company: Considerations for Alaska Business Organizations , 13 A LASKA L. R EV. 289,
297-98 (1996).
2 Briggett, supra note 1, at 287-89; Ingram, supra note 1, at 2.
3 Ch. 99, §1, SLA 1994 (enacting Alaska LLC law); see Alaska Revised
Limited Liability Company Act, AS 10.50.010-.995; Minutes, House Judiciary Comm.,
Hearing on H.B. 420, 18th Leg., 2d Sess. No. 353 (March 23, 1994) (testimony of Rep.
Gene Therriault, House District 33, bill sponsor) (describing LLC as "new hybrid form
of business structure . . . that combines the tax advantages of a partnership and the
(continued...)
-2- 7602
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Just as LLC members enjoy limited liability for LLC actions and liabilities,
4
LLCs enjoy protection from members' non-business activities.
Because a person can
become an LLC member only "in compliance with the operating agreement of the
5 many jurisdictions, including
company" or with the consent of all LLC members,
Alaska, allow a judgment creditor to reach a member's LLC interest exclusively through
an instrument called a charging order.6 The judgment creditor may not acquire the LLC
member's interest; the charging order requires "only that the LLC pay to the creditor any
distributions that otherwise would be due to the member."7 Distributions are payments
LLCs make to their members, either during the life of the LLC (interim distributions)8
3 (...continued)
liability safeguards of a corporation").
4 Briggett, supra note 1, at 287-91 (discussing reverse veil piercing).
5 AS 10.50.155(a) (outlining LLC membership requirements).
6 Briggett, supra note 1, at 2 97; AS 10.50.380 ("This section provides the
exclusive remedy that a judgment creditor of a member or a member's assignee may use
to satisfy a judgment out of the judgment debtor's interest in the limited liability
company."). The legislature has clarified that a charging order is a creditor's exclusive
remedy in law or equity. AS 10.50.380(c); ch. 45, §4, SLA 2013 (enacting amendments
to AS 10.50.380(c) to address equitable remedies). Commentary on AS 10.50.380(c)
and similar exclusive remedy provisions suggests that "legislatures perceive the charging
order as so broad and potentially useful a tool that no other remedy is needed and that,
in fact, it needs explicit limitation." Chad J. Pomeroy, Think Twice: Charging Orders
and Creditor Property Rights, 102 KY. L.J. 705, 721 n.102, 722 (2014).
7 Briggett, supra note 1, at 297; see AS 10.50.380(b) (stating that holder of
charging order has same rights as would assignee of LLC member's interest);
AS 10.50.375(b) (stating that assignee of member's interest has right only to LLC
distributions due to member).
8 AS 10.50.990(8) (defining "interim distribution" as "a distribution of the
(continued...)
-3- 7602
----------------------- Page 4-----------------------
9
or at the dissolution and winding up stage (final distributions).
10
An LLCtypically is governed by anoperating agreement. In Alaska, state
law fills gaps if operating agreements are silent. For example, if an LLC's operating
agreement does not specify how distributions are to be allocated to members, Alaska law
11 But Alaska law also affords
requires equal distributions to all members by default.
LLC members the flexibility to choose different distribution arrangements.12
III. FACTS AND PROCEEDINGS
A. General Background
Lee Baker and Kenneth Duffus formed Harvest Properties, LLCto develop
a parcel of land near Anchorage. They also were jointly involved in a project involving
8 (...continued)
assets of a limited liability company to the company's members," excluding final
distributions); AS 10.50.295 (governing interim distributions under LLC operating
agreement); AS 10.50.300 (governing interim distributions without LLC operating
agreement); cf. AS 10.06.990(17) (defining "distribution to its shareholders" in Alaska
Corporations Code as "the transfer of cash or property by a corporation or its subsidiary
to its shareholders without consideration, whether by way of dividend or otherwise,
except a dividend in shares of the corporation, or the purchase or redemption of its shares
for cash or property").
9 AS 10.50.425 (governing distribution of assets during dissolution and
winding up process and noting that distribution procedure may be modified by LLC's
operating agreement).
10 See Ingram, supra note 1, at 3; AS 10.50.070-.095 (detailing LLC
organization and allowing members to establish operating agreements).
11 AS 10.50.300.
12 AS 10.50.295 (allowing LLCs to create operating agreements
"authoriz[ing] different interim distributions for different classes of members");
AS 10.50.425 (allowing LLCs to modify in their operating agreements statutory
procedure for distribution of assets following dissolution).
-4- 7602
----------------------- Page 5-----------------------
a parcel called Marion Bowen. Both projects failed, each leading to over a decade of
litigation involving claims by creditors and between Baker and Duffus.
As explained below, in two separate lawsuits Duffus obtained judgments
against Baker that remain largely unsatisfied. Baker's sole significant asset was a 50%
membership interest in Aurora Park, LLC, and its sole relevant asset was the Aurora Park
apartment complex (the Apartments) in Anchorage. Baker ultimately transferred his
interest in Aurora Park in a settlement agreement between Baker and the other LLC
member.
To understand the parties' arguments on appeal, it is first necessary to
understand theMarion Bowen litigation, theHarvestProperties litigation, andtheAurora
Park settlement agreement. We then set out the specific Marion Bowen proceedings
underlying this appeal.
B. Marion Bowen Litigation
Disputes over the failed Marion Bowen project resulted in a 2008
13
confession of judgment,
with Baker agreeing to pay Duffus $150,000 plus interest.
Baker gave Duffus a "partial assignment of proceeds" from "any sale, conveyance,
transfer or disposition" of the Apartments that Baker should be entitled to under his 50%
interest in Aurora Park. Duffus recorded this assignment. Baker and Duffus agreed that
Duffus could enforce the confession of judgment against Baker if the Apartments did not
sell within five years.
The Apartments were not sold, and in 2013 Duffus sought to enforce
Baker's confession of judgment. Judgment in the amount of $252,585.06 was entered
in Duffus's favor. Duffus apparently took no further relevant action until 2019, later
explaining that, despite obtaining the favorable judgment: "[T]here was nothing to
13
See generally Alaska R. Civ. P. 57 (governing confession judgment).
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----------------------- Page 6-----------------------
execute on. [He] could only hope that Aurora Park would eventually sell [the
Apartments], triggering a company distribution to . . . Duffus as assignee."
C. Harvest Properties Litigation
Baker and Duffus were personally liable for a large bank loan to their LLC
14
that financed the Harvest Properties venture.
In 2007, after the venture failed, the bank
15
sued to recoup its money. Duffus and Baker each settled with the bank, but litigation
16
between the two proceeded to a jury trial in 2016. Duffus obtained a roughly $1.2
17 18
million judgment against Baker, and Baker appealed. While the case was on appeal,
in May 2017 the Harvest Properties court granted Duffus a charging order against LLC
distributions flowing from Baker's 50% membership in Aurora Park.
D. Aurora Park Lawsuit And Further Harvest Properties Action
Taking the Harvest Properties and Marion Bowen judgments together, by
2017 Baker owed Duffus roughly $1.5 million, excluding interest. Duffus's path to
recovery soon got more complicated.
Northern Trust Real Estate, Inc. is a corporation; its purpose is managing
Aurora Park and it is owned 100% by Patricia Baker, Baker's ex-wife and the other 50%
19
Northern Trust and Aurora Park sued Baker in August 2016,
member of Aurora Park.
alleging that Baker had violated his fiduciary duties to Aurora Park and failed to make
14 Baker v. Duffus, 441 P.3d 432, 434 (Alaska 2019).
15 Id.
16 Id. at 434-35.
17 Id. at 435.
18 Id.
19 To avoid confusion, we hereafter refer to Patricia by her first name. We
intend no disrespect.
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capital contributions. Patricia joined as an individual plaintiff in early 2018.
Partofthedisputeconcerned theeffect ofDuffus's2017HarvestProperties
charging order on Baker's interest in Aurora Park. The charging order potentially
triggered a clause in Aurora Park's operating agreement that would allow Aurora Park
to acquire Duffus's interest in the charging order. Duffus, Patricia, and Aurora Park
agreed that Aurora Park would sell the Apartments and distribute Baker's share of the
proceeds (50%) to Duffus. But Baker argued that the Aurora Park operating agreement
did not authorize such a sale; the sale never happened. Instead, in September 2018 the
parties settled, without including Duffus, and the case was dismissed with prejudice.
The settlement agreement set out four contingencies depending on whether
Patricia and Aurora Park could sell or refinance the Apartments. The parties ended up
within the contingency applicable if Patricia were "unable to refinance the [Apartments]
by April 1, 2019." Under this contingency, Baker agreed to quitclaim his interest in
Aurora Park to Patricia in exchange for a $50,000 payment. Patricia and Northern Trust
additionally agreed to pay $250,000 to Jones Law Group (JLG), the firm representing
Baker in the Aurora Park lawsuit and other litigation. The settlement was structured with
initial $50,000 payments to Baker and to JLG, with subsequent $3,000 monthly
payments to JLG until the remaining $200,000 was paid in full. Patricia and Northern
Trust also agreed to execute a $200,000 confession of judgment in JLG's favor in case
of missed payments. The two initial $50,000 payments were, by agreement, deposited
with the court registry.
After the Aurora Park settlement, Duffus attempted to intervene in that
lawsuit; he argued that the Harvest Properties charging order applied to the settlement
funds because Aurora Park had violated its agreement to sell the Apartments and give
him 50% of the proceeds. In January 2019 the Aurora Park court told Duffus to seek
relief from the Harvest Properties court that had issued the charging order. Duffus then
-7- 7602
----------------------- Page 8-----------------------
returned to the Harvest Properties court; in April that court held that the charging order
applied to the entirety of the settlement funds. 20 The Harvest Properties court ordered
the settlement funds paid to the court registry for distribution to Duffus.
In May we reversed the Harvest Properties judgment underlying the
21 Duffus then returned to the Marion
charging order and remanded for a new trial.
Bowen litigation, where Baker's unpaid $150,000 confession of judgment from 2008,
with interest, had ballooned to an outstanding debt of roughly $460,000. Duffus asked
the Marion Bowen court to issue its own charging order against the Aurora Park
settlement funds.22
E. Proceedings Underlying This Appeal
The Marion Bowen court held an October hearing on Duffus's request for
a charging order and granted the order in December. The court directed the entirety of
20 The Harvest Properties court reasoned that its charging order "include[d]
language intended to ensure that it applie[d] to a broad set of payments that might be
made on behalf of [Baker]" and pointed out that the charging order characterized
"[d]irect or indirect payments" to Baker as "distributions." The Harvest Properties court
concluded that the $50,000 paid to Baker was a direct payment while the $250,000
payable to JLG was an indirect payment because it would "benefit[] [Baker] by
eliminating or reducing his debt to his lawyers." The Harvest Properties court also
concluded that the payments were Aurora Park distributions, despite coming from
Patricia and Northern Trust, because "[t]he sale proceeds of the transaction that
eliminated [Baker's] interest in Aurora [Park] were an asset of Aurora [Park] that are to
be transferred to [Baker]."
21 Baker, 441 P.3d at 438.
22 After we reversed the Harvest Properties judgment, the Harvest Properties
court ordered the settlement funds to remain in the court registry until their status could
be determined by the Marion Bowen court. Baker disputes the propriety of this action,
but the Harvest Properties court's order is not before us in this appeal, which comes only
from the Marion Bowen litigation.
-8- 7602
----------------------- Page 9-----------------------
Baker's Aurora Park settlement funds be distributed to Duffus. The court's reasoning
echoed that of the Harvest Properties court; the settlement funds Patricia and Northern
Trust paid Baker were Aurora Park "[buying out] . . . Baker's interest and, thus, the
payments constitute[d] distributions." The court also reasoned that the payments to JLG
were covered by the charging order as "indirect" payments to Baker because they
reduced his debt to his attorneys.
The Marion Bowen court appears to have concluded that, for purposes of
the charging order, payments made by Patricia and Northern Trust counted as
distributions from Aurora Park. For example, the Marion Bowen court cited an order
from the Harvest Properties court to support the position that "Aurora Park paid the first
$100,000 [of the settlement funds] to the court registry." But the Harvest Properties
court order states that Patricia paid these funds. The Marion Bowen court also wrote that
Aurora Park "or its other princip[al], . . . Patricia[,] . . . agreed to pay [the settlement
funds]." As we explain later, the distinctions matter.
After granting Duffus's charging order, the Marion Bowen court learned
that another lien had been filed against Baker's settlement funds. During the October
hearing the court had asked whether there was an attorney's lien in the Aurora Park
lawsuit and had been correctly told there was not. But in November JLG filed an
attorney's lien in the Aurora Park lawsuit. Upon learning about the lien, the Marion
Bowen court invited the parties to submit additional briefing regarding which instrument
should take priority. The Marion Bowen court later concluded that it had authority to
enforce the attorney's lien even though the lien was filed in the Aurora Park lawsuit. The
Marion Bowen court ultimately determined that the funds already in the court registry
before the attorney's lien was filed (roughly $122,000) could not be subject to the
attorney's lien but that the attorney's lien took priority for the funds not yet paid (roughly
$128,000).
-9- 7602
----------------------- Page 10-----------------------
The Marion Bowen court decided the charging order and attorney's lien
issues on the parties' briefing; it did not conduct an evidentiary hearing about the source
of the Aurora Park settlement funds or the value of the legal services JLG provided
Baker in the Aurora Park lawsuit, although Baker and Duffus disputed key underlying
facts.
Duffus appeals, arguing the attorney's lien is invalid, but, if valid, should
not take priority over his charging order. Baker cross-appeals, arguing the charging
order is invalid, but, if valid, should not take priority over the attorney's lien.
IV. STANDARD OF REVIEW
23
Chargingorders and attorney's liens aregovernedbystatute.
Weconsider
24
Whether the
questions of statutory interpretation using our independent judgment.
settlement funds count as LLC distributions under Alaska law is a mixed question of law
25
and fact:
The applicability of a statutory definition is a question of law which we
26 But
review de novo and the underlying findings of fact are reviewed for clear error.
if factual determinations are based on insufficient evidence, appellate review is not
23 AS 10.50.380 (laying out Alaska's charging order rules); AS 34.35.430
(delineating attorney's lien rules).
24 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 762-63 (Alaska
2018); Anderson v. Alyeska Pipeline Serv. Co. , 234 P.3d 1282, 1286 (Alaska 2010).
25 Cf. Bilbao v. Bilbao, 205 P.3d 311, 313 (Alaska 2009) ("A trial court's
characterization of property as separate or marital may involve disputed facts and
questions of law. We review findings of fact under the clearly erroneous standard, and
we review questions of law de novo using our independent judgment.").
26 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005) ("We review a
trial court's rulings on questions of fact for clear error. We review a trial court's rulings
on questions of law, and the application of law to fact, de novo . . . ." (footnote omitted)).
-10- 7602
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27
appropriate until the proper evidentiary inquiries have been made. Lien priority is a
question of law that we consider de novo, "adopt[ing] the rule of law that is most
persuasive in light of precedent, reason, and policy." 28
V. DISCUSSION
Duffus presents two issues for review: (1) whether JLG's attorney's lien
is valid and (2) whether it should have been given priority over Duffus's claim for
money still held by Aurora Park when the attorney's lien was filed. Baker presents two
additional questions in his cross-appeal: (1) whether the Marion Bowen charging order
is valid and (2) whether the charging order could properly reach the portion of the
settlement payable to JLG. As we explain below, further evidence is necessary to
determine the validity of the charging order. And, although the lien is valid, further
evidence is necessary to determine its amount. We therefore remand to the superior
court for an evidentiary hearing on both issues.
A. The Marion Bowen Court's Charging Order
Charging orders give "judgment creditor[s] . . . only the rights of an
assignee of the member's interest."29 Assignees, in turn, may receive, "to the extent
assigned, only the distributions to which the assignor is entitled."30
As a judgment
creditor awarded a charging order against Aurora Park, Duffus may receive "only
27 Cf. Horne v. Touhakis , 356 P.3d 280, 283-84 (Alaska 2015) (remanding
child support casebecausesuperior court's imputed income findings for obligor werenot
sufficiently based on evidence and discussing other similar cases).
28 Falconer v. Adams, 20 P.3d 583, 584 (Alaska 2001).
29 AS 10.50.380(b) (explaining rights of judgment creditor to judgment
debtor's LLC assets).
30 AS10.50.375(b) (explainingrights ofassigneestoLLCmember'sinterest).
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----------------------- Page 12-----------------------
31
distributions to which [Baker] is entitled." The validity of Duffus's Marion Bowen
charging order on Baker's settlement funds therefore turns on whether the settlement
funds paid by Patricia and Northern Trust were a "distribution" by Aurora Park.
1. The settlement proceeds as distributions
The Marion Bowen court concluded that the Aurora Park settlement
payments "constitute[d]distributions." Thecourt concluded that, in addition to thedirect
payments to Baker, the JLG payments were "indirect payment[s]" to Baker because they
"eliminated or reduc[ed] [his] debt to his lawyers." For reasons not fully explained, the
court relied on the Alaska Corporations Code's definition of "distribution to [a
corporation's] shareholders," which is "the transfer of cash or property by a corporation
. . . to its shareholders . . . or the purchase or redemption of its shares for cash or
32
property." A share redemption is a transaction in which a corporation purchases shares
33
of its stock from shareholders. The court analogized the settlement, which involved
Baker transferring his membership interest in Aurora Park to Patricia, to a corporation's
share redemption and therefore a distribution under the Corporations Code. The court
explained that its reasoning was appropriate because "Baker was originally supposed to
satisfy the judgment in this case . . . by selling his shares in Aurora Park." But the
court's statement was incorrect: Under the original assignment of proceeds Baker gave
31 See id.
32 AS 10.06.990(17). We note that unlike a corporation, which issues shares
of stock to its owners, an LLC has "members" with membership interests. Compare
AS 10.06.990(40)-(41) (defining shares as units of "proprietary interest[] in a
corporation"), with AS 10.50.155 (stating that one requirement of LLC membership is
an "interest" in LLC).
33 See generally AS 10.06.385, .388 (describing corporation's redemption
authority and ability to reissue redeemed or otherwise purchased shares).
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----------------------- Page 13-----------------------
Duffus, Duffus was to receive any Aurora Park distribution to Baker when Aurora Park
sold the Apartments, and under the later agreement among Patricia, Aurora Park, and
Duffus (but not Baker), Aurora Park was to sell the Apartments and distribute Baker's
share of the proceeds to Duffus.
Baker makes two primary arguments why the Marion Bowen court's
reasoning is erroneous. Baker first contends that the court erroneously relied on the
definition of "distribution" fromthe Corporations Code instead of looking first to Alaska
LLC law or the Aurora Park operating agreement. Baker argues that Alaska LLC law
"does not include a definition of 'distribution' in its definitions section or in its Article
dedicated to distributions," instead referring to "the LLC's operating agreement," and
that the Aurora Park operating agreement defines distributions as payments of excess
cash. Baker secondly points out that the settlement money was paid by "Patricia
(individually) and [Northern Trust]," not Aurora Park, and could not have been an LLC
distribution.
Weagreewith Baker that theCorporations Codedefinitionof"distribution"
34 and
is inapplicable to LLCs; because Alaska LLC law addresses both charging orders
distributions,35 we look there first. But contrary to Baker's assertion that Alaska LLC
law does not "include a definition of 'distribution,' " Alaska LLC law recognizes two
types: interim distributions and final distributions.36 Interim distributions are "a
34 AS 10.50.380 (addressing judgment creditors' rights).
35 AS 10.50.295-.340 (governing interim distributions); AS 10.50.425
(governing final distributions).
36 See supra note 35.
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----------------------- Page 14-----------------------
distribution of the assets of a limited liability company to the company's members"; 37
38
final distributions occur as part of the dissolution and winding up process. The
settlement funds, if a distribution at all, were interim distributions.
Interim distributions necessarily involve "a distribution of the assets of a
39 The Marion Bowen court apparently determined that
limited liability company."
Patricia's and Northern Trust's payments constructively were made by Aurora Park,
even though the funds came directly from Patricia and Northern Trust. It may be that the
funds Patricia and Northern Trust paid originated from Aurora Park, possibly qualifying
them as distributions.40 But absent evidence tracing the funds to Aurora Park, they were
not LLC distributions. Because the Marion Bowen court did not inquire into the funds'
origins and merely imputed them to Aurora Park, apparently as a matter of law without
regard to the funds' actual source, we cannot review the legal conclusion that the funds
were LLC distributions.41
37 AS 10.50.990(8).
38 AS 10.50.425.
39 AS 10.50.990(8).
40 Alaska LLC law defines interim distributions as transfers of company assets
"to the company's members." AS 10.50.990(8). Baker contends that the charging
order's timing, issued after he already had transferred his membership in Aurora Park to
Patricia, made it invalid. Baker transferred his Aurora Park interest in the spring of
2019, but the charging order was not issued until December. If the settlement funds
indeed were distributions - as defined under LLC law - when the settlement was
reached and Baker still was an LLC member, the charging order may apply. Structuring
the settlement as monthly installments occurring in part after Baker transferred his
Aurora Park interest rather than as a lump sum does not meaningfully impact the
analysis.
41 Cf. Horne v. Touhakis, 356 P.3d 280, 283-84 (Alaska 2015) (remanding
(continued...)
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We note also that Aurora Park's operating agreement defines "interim
distribution" differently from Alaska LLC law. The operating agreement allows interim
distributions when "cash on hand exceeds the . . . needs for operating expenses, debt
service, reserves, and additional capital expenses." If the operating agreement's
definition controls, an evidentiary hearing would be needed not only to trace settlement
funds to Aurora Park but also to demonstrate that the funds originated from excess cash.
But whether the operating agreement's definition controls is unclear at this juncture.
Alaska laws give an LLC flexibility to deviate from the default requirement of paying
each member an equal share of distributions, but the laws may not necessarily give an
42
LLC the flexibility to change the definition of a distribution.
Baker also argues that the charging order, even if valid, does not apply to
the portion of the settlement funds payable to JLG. Because a charging order applies
only to LLC distributions, we conclude that the charging order cannot apply to any part
of the settlement funds unless they are a distribution traceable to Aurora Park assets. If
the funds payable to JLG are traceable to Aurora Park, they might be subject to the
charging order pending resolution of the timing and definition issues described above
and the evidentiary issues related to the attorney's lien discussed below.
For the foregoing reasons, we remand to the superior court for an
evidentiary hearing to determine whether the settlement funds are a distribution
41 (...continued)
childsupportdecisionbecausesuperior court'simputed incomefindings forobligorwere
not sufficiently based on evidence and discussing similar cases).
42 See AS 10.50.295 (stating "[t]he operating agreement of the company may
authorize different interimdistributions for different classes of members," but indicating
company may alter only "manner" in which interim distributions are paid, not "interim
distribution"definition);AS10.50.990(8) (defining "interimdistribution"without taking
into account presence of operating agreement).
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----------------------- Page 16-----------------------
originating from Aurora Park.
B. The Aurora Park Lawsuit Attorney's Lien
AlaskaStatute34.35.430(a)(1)-(4) delineates four types ofattorney's liens.
JLG asserted a charging lien under AS 34.35.430(a)(3), giving an attorney a lien "upon
money in the possession of the adverse party in an action or proceeding in which the
attorney is employed, from the giving of notice of the lien to that party." The Marion
Bowen court ruled that JLG held a valid $250,000 attorney's lien in the Aurora Park
lawsuit but that the lien was applicable only to settlement funds which had not been paid
into the court registry by the date of the attorney's lien - a sum of $127,840.50. The
Marion Bowen court held that the attorney's lien took priority over Duffus's charging
order and observed that this would result in partial recovery for Duffus and partial
payment for JLG. Duffus challenges the attorney's lien on several fronts.
Duffus argues that by accepting a confession of judgment fromPatricia and
Northern Trust in the Aurora Park lawsuit settlement agreement, JLG waived its right to
assert an attorney's lien. Duffus explains that two conditions must be met
under AS 34.35.430(a)(3) to establish a valid attorney's lien: "(1) compensation due
from a client to an attorney, and (2) money in the possession of an adverse party in an
action or proceeding in which the attorney is employed." Duffus claims Baker "asserted,
but never demonstrated" that JLG was "due compensation" in the Aurora Park lawsuit,
and "[t]here [was] no evidence in the trial record" of either an express or implied fee
agreement. Duffus calls the settlement agreement "highly problematic" evidence of an
agreement, given that the funds otherwise would go to Duffus, not to JLG's client,
43
Baker.
43 Duffus does not contest the second prong of his statutorily derived test:
whether the "money [is] in the possession of an adverse party in an action or proceeding
(continued...)
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Quoting Law Offices of Steven D. Smith, P.C. v. Ceccarelli , Duffus also
argues that, even if the lien were valid, "enforcement of a valid attorney's lien is
44 Duffus points to Baker's 2008
accomplished 'based on equitable considerations.' "
Marion Bowen assignment to Duffus of "any proceeds" from "any sale, conveyance,
transfer or disposition of the [Apartments] on the basis of [Baker's] 50%member interest
in Aurora Park." Duffus argues that Baker's transfer of his interest in Aurora Park to
Patricia as part of the Aurora Park settlement agreement triggers this assignment and that
Duffus's claim to the settlement funds therefore should be equitably prioritized over the
attorney's lien.45 For reasons explained below, we decline to address the priority of the
various claims to the settlement funds and analyze only the validity of the attorney's lien.
43 (...continued)
in which [JLG] is employed." We note that the settlement funds yet to be paid into the
court registry meet this definition, as they currently are held by some combination of
Aurora Park, Patricia, and Northern Trust, who were adverse parties in the Aurora Park
lawsuit that produced the settlement. The parties agree with the Marion Bowen court
that validity of an attorney's lien from that litigation can be resolved in the Marion
Bowen case.
44 385 P.3d 841, 844 (Alaska 2016) (quoting In re Sea Catch, Inc., 36 B.R.
226, 230 (Bankr. D. Alaska 1983)).
45 The 2008 assignment of proceeds appears similar to a charging order, but
the 2008 assignment also appears to be limited to a distribution by Aurora Park to its
members from a sale of the Apartments, which has yet to occur. Duffus's assertion that
Baker's sale of his Aurora Park LLC membership to Patricia triggers the 2008
assignment of proceeds is yet a step beyond the Marion Bowen court's assertion that
Patricia's personal payments for her purchase of Baker's LLC membership was an LLC
distribution. Whether Patricia took Baker's LLC interest subject to Baker's earlier
assignment of proceeds to Duffus is not at issue in this case.
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1. Waiver of the attorney's lien issue
Baker argues that Duffus did not contest the validity of the attorney's lien
in his supplemental briefing before the Marion Bowen court and therefore waived the
issue. We disagree. Duffus advanced several arguments against the enforceability of the
lien, including that: (1) JLG surrendered its claim for fees against Baker by agreeing to
the settlement in which it would be paid directly by Patricia and Northern Trust; (2) an
attorney's lien could not apply because the settlement actually was a buyout of Baker's
interest in Aurora Park and not a fund generated by JLG's efforts; and (3) the amount
due JLG under the settlement included compensation for "matters outside of the subject
litigation" for which the firm was not entitled to an attorney's lien.
Duffus did not further litigate the validity of the attorney's lien in the
Marion Bowen court because subsequent proceedings were about the priority of the
attorney's lien against Duffus's charging order and the Marion Bowen court's
jurisdiction; the lien's validity was not an issue after the Marion Bowen court ruled that
it was valid. Duffus thus did not waive the attorney's lien issue.
2. Permissibility of the attorney's lien
According to Duffus, JLG's participation in the Aurora Park lawsuit
settlement negated its ability to assert an attorney's lien in two ways. Duffus first points
to a clause whereby each party agreed to bear its own costs and fees as evidence that JLG
was surrendering any claim for attorney's fees. Duffus characterizes JLG as a "party"
to the settlement agreement and argues that JLG agreed to bear its own costs and fees and
"released its claims against . . . Baker in exchange for a new promise by Aurora Park."
Duffus next points out that JLG secured an agreement that Patricia and Northern Trust
would confess judgment and argues that this negated JLG's right to assert an attorney's
lien against the settlement funds. The Marion Bowen court did not find these arguments
persuasive; nor do we.
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----------------------- Page 19-----------------------
The settlement agreement clause making each party responsible for paying
its own fees is, as Baker points out, standard language intended simply to prevent parties
from upsetting a settlement by later seeking attorney's fees through additional litigation.
And Baker's agreement to be responsible for his own attorney's fees (to JLG) does not
on its own obviate JLG's right to an attorney's lien on Baker's settlement funds.
Duffus's argument that JLG was a "party" to the settlement also is not persuasive. As
the Marion Bowen court noted, JLG represented Baker throughout the Aurora Park
lawsuit; it was not advocating on its own behalf as a litigant. It is true that JLG
participated in the settlement negotiations, but it appears to have done so to secure
attorney's fees through the settlement funds. Although this may be unusual, this activity
on its own does not transform JLG into a "party" to the underlying litigation.
NordoesJLG's arrangementtoreceivefees under thesettlement agreement
preclude its ability to pursue an attorney's lien against the settlement funds. As the
Marion Bowen court observed, we have recognized that the attorney's lien statute is
46 We
liberally construed to allow attorneys to recover compensation for their services.
have held that a lien may be pursued even after receiving a confession of judgment
because an attorney is "entitled to pursue any other collateral concurrent remedy before
satisfaction of [the] judgment."47 JLG's participation in the settlement agreement may
have been unusual, but it did not preclude JLG from seeking to recoup fees through an
46 AS 34.35.930 ("The intent of this chapter is remedial and its provisions
shall be liberally construed."); see Phillips v. Jones , 355 P.2d 166, 172 (Alaska 1960)
(recognizing that attorney's lien statute is to be liberally construed).
47 Sheehan v. Est. of Gamberg, 677 P.2d 254, 258 (Alaska 1984). Duffus
correctly notes that in Sheehan the confession of judgment came fromthe attorney's own
client, not an adverse party. Id. But this distinction does not change the analysis; the
confession of judgment comes from the possessor of the funds, and the claim for
attorney's fees properly lies against the client. See id.
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----------------------- Page 20-----------------------
attorney's lien. JLG's efforts "created the property against which the lien is being
48
asserted,"
the Marion Bowen court found "the payments were intended to reduce . . .
49 JLG permissibly could
Baker's debt to JLG," and we see no clear error in that finding.
assert an attorney's lien against the settlement funds.
3. Evidentiary issues concerning attorney's lien
Although we conclude that JLG's attorney's lien is valid, Duffus casts
doubt on the actual value of JLG's services rendered in the Aurora Park lawsuit. As
Duffus notes, evidence of the value of JLG's legal services is scant, at best. Baker
argues that the Marion Bowen court's conclusion that the parties in the Aurora Park
lawsuit intended the portion of the funds designated for JLG to be compensation for
48 Id. at 257 (emphasizing attorney's right to assert lien against property
attorney helped create); see also Sea Catch , 36 B.R. at 234 (endorsing equity of giving
attorney right to assert lien over fund designed in part to be "compensation for the
attorney's services").
49 The Marion Bowen court noted the general rule that an "attorney cannot
assert an attorney's lien in one case to recover fees and costs resulting from a different
case." After supplemental briefing, the Marion Bowen court concluded - and the
parties agreed - that JLG could have filed a separate action to enforce its lien. See
Ceccarelli, 385 P.3d at 843-45 (finding attorney's lien filed in separate action against
party that had been adverse to attorney's client in previous case valid and enforceable).
The Marion Bowen court concluded that it had authority to enforce JLG's attorney's lien
even though JLG sought to recover for fees incurred in the Aurora Park lawsuit. The
Marion Bowen court said this would promote "judicial economy" and avoid forcing JLG
to file a separate action for its attorney's lien, an action which could have ended up back
before the very same court, and, given that Aurora Park was indifferent to the outcome
of the attorney's lien dispute, would serve no purpose other than "elevating form over
function."
Because the parties appear to agree that JLG may in this case seek to
enforce an attorney's lien on the Aurora Park settlement funds for the value of its
services in the Aurora Park lawsuit, we move forward under this arrangement without
ruling on the matter.
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----------------------- Page 21-----------------------
JLG's services in that case is "amply supported by the record." The record support
Baker points to includes: (1) the complaint in the Aurora Park lawsuit; (2) the Aurora
Park settlement agreement; (3) the Harvest Properties charging order; and (4) Baker's
assertions (through JLG) that the entire $250,000 was for fees in the Aurora Park
lawsuit.
Baker's evidence comes up short. Even though the Marion Bowen court
decided to enforce an attorney's lien filed in the Aurora Park lawsuit, not the Marion
Bowen lawsuit, the lien itself can extend only to the services rendered in the Aurora Park
50 The Harvest Properties charging order Baker cites contradicts his claim and
lawsuit.
suggests that JLG's fees are for services rendered in multiple cases: "The $250,000 to
be paid to [JLG] is presumably for attorney['s] fees [Baker] incurred in the present
litigation, the [Aurora Park litigation], or in other matters." The other sources are little
better, amounting to Baker's own assertions and proof that the Aurora Park lawsuit was
filed and then settled.
In Ceccarelli we remanded an attorney's lien dispute when the parties
disagreed about the fee amount and we found no evidence supporting the fee
calculation.51 Similarly, more evidence outside of Baker's assertions, such as fee
agreements and billing records, is needed to establish the value of the legal services JLG
provided in the Aurora Park lawsuit, especially because a portion of the settlement funds
50 See Ceccarelli , 385 P.3d at 844 (stating that attorney has "right to have fees
and costs due to the attorney for services in a particular suit secured by the judgment or
recovery in such suit" (emphases added) (quoting Sea Catch, 36 B.R. at 230));
WILLISTON ON CONTRACTS, supra note 48, § 62:11 ("A charging lien does not cover all
amounts outstanding that may be due the attorney from the client for professional
services rendered in other transactions. . . . [Such a] lien extends only to charges and fees
in the suit in which the judgment was obtained."(footnote omitted)).
51 385 P.3d at 846.
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----------------------- Page 22-----------------------
JLG claims could be paid to Duffus if his charging order is valid. We therefore remand
to the superior court to make the appropriate evidentiary inquiries. 52
VI. CONCLUSION
The superior court's judgment enforcing the charging order is VACATED
and the case is REMANDED for an evidentiary hearing. The superior court's order
enforcing the attorney's lien also is VACATED and REMANDED for an evidentiary
hearing to determine the amount of attorney's fees secured by the lien.
52 See id . Baker and Duffus also disagree whether the charging order should
take priority over the attorney's lien. But generally we do not answer hypothetical
questions. Cf. State v. ACLU of Alaska , 204 P.3d 364, 368-73 (Alaska 2009) (explaining
principle that courts hesitate to answer hypothetical questions, especially when concrete
facts prove useful). Because it has yet to be determined whether the charging order is
valid and how much money may be included in the attorney's lien, we decline to decide
which instrument would take priority, and how to weigh any attendant equitable
considerations, without first remanding for the superior court to answer the prerequisite
questions we have identified.
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