Leisnoi, Inc. v. Stratman , 1992 Alas. LEXIS 72 ( 1992 )

MOORE, Justice,

dissenting.

In spite of the complex factual setting of this case, the issues here are simple. First of all, did Koniag have the legal authority to enter into a binding agreement with Stratman and Burton? Secondly, if Koniag had such legal authority, are Stratman and Burton entitled to specific performance against Leisnoi, Koniag’s successor?

The majority concludes, and I agree, that under Alaska corporations law, Koniag acquired all of the rights, powers, interest and obligations of Leisnoi as a result of the merger, and that, at the time of the Strat-man Agreement, Koniag had the authority to contract to convey the former assets of Leisnoi and to settle litigation in which Leisnoi had been a party. Consequently, at the time the Stratman Agreement was executed, it was a binding and enforceable contract. However, in reversing the trial court’s award of specific performance to Burton and Stratman, the majority not only departs from the standard of review which it purports to apply, but it fails to provide a sound legal justification for the result it reaches. Instead, the majority relies on a strained interpretation of a doctrine which other courts have narrowly circumscribed.

In reviewing decisions to specifically enforce contracts, we defer to the discretion of the trial court unless the clear weight of the evidence requires reversal. Stenehjem v. Kyn Jin Cho, 631 P.2d 482 (Alaska 1981). Here, the majority effectively abandons this standard of review, engages in its own balancing of the equities, and substitutes its own judgment for that of the trial court, while claiming it is merely reviewing “de novo the legal foundations of the trial court’s decision.” In Hall v. Add-Ventures, Ltd., 695 P.2d 1081 (Alaska 1985), which the majority cites as the precedent allowing the broad review it affords here, we reversed the denial of specific performance because we disagreed with the trial court’s conclusion that no enforceable contract had been formed. No such fundamental legal prerequisite to specific performance is at issue in the present case.

I

Here, the trial court was within its discretion and properly exercised its equitable powers in awarding specific performance to Stratman and the Burtons, and the clear weight of the evidence does not require reversal. In entering into the Stratman Agreement, Koniag conferred a substantial benefit on the former shareholders of Leis-noi. In exchange for Koniag’s agreement to convey the acreage to them at below market price, Stratman and Burton agreed to drop the decertification litigation which, if pursued, almost certainly would have resulted in the decertification of Leisnoi and the complete extinction of its entitlement to land and other corporate assets under ANCSA.¹ Leisnoi, the party benefit-ting from the court's decision today, was itself not an innocent party, but rather was a defendant in the demerger litigation charged with preparing fraudulent joint proxy statements.² Furthermore, the principles of res judicata cannot be a basis for denying specific performance, as no final judgment containing a finding of fraud was ever rendered in the demerger litigation.³ Finally, it is inequitable to allow a voluntary settlement agreement between Leisnoi and Koniag to defeat the legitimate expectation interests of Stratman and the Bur-tons arising from the Stratman Agreement. It is untenable, either as a matter of law or equity, that the knowledge of Stratman and Burton of the demerger litigation or that settlement of that litigation should preclude them from obtaining specific performance of an otherwise valid and enforceable contract. The majority cites no legal authority for the proposition that such knowledge precludes the availability of the remedy of specific performance.

To reach its desired result, the majority incorrectly treats this case as one involving conflicting claims to title of real property when the real issue is the enforceability of a contract for the conveyance of real property. The majority relies on the doctrine of lis pendens as articulated in § 44 of the Restatement (Second) of Judgments (1982) which states that “[a] successor in interest of property that is the subject of a pending action to which his transferor is a party is bound by ... the rules of res judicata to the same extent as his transfer-or_” (Emphasis added). The principle has its roots in both common law and equity jurisprudence. 54 C.J.S. Lis Pendens § 1 (1948); 51 Am.Jur.2d Lis Pendens § 1 (1970). Under the doctrine, at both common law and in equity, the mere pendency of a suit affecting the title to real property constituted constructive notice to the world of a disputed claim regarding the title. Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139, 140-41 (1975).

Under the majority’s reading of this principle, the property which Koniag agreed to convey in the Stratman Agreement was “the subject” of Shuravloff’s shareholder action. In other words, the majority apparently believes that a shareholder’s suit alleging fraud in proxy statements is a suit affecting title to real property. An examination of the law and facts reveals the transparency of this proposition.

An essential element for the invocation of the doctrine of lis pendens, and one which the majority ignores, is that the pleadings in the pending litigation must contain a description of the real property in question. Herman v. Goetz, 204 Kan. 91, 460 P.2d 554, 559 (1969); Flanagan v. Clark, 156 Okl. 230, 11 P.2d 176 (1932). Here, the complaint in the demerger litigation contained no such description, and that litigation concerns title to real property only in the remotest sense.

In assessing whether Shuravloff’s suit was an action “affecting title to real property,” it is instructive that the pendency of the demerger litigation would have been an insufficient.basis for the recordation of a lis pendens notice under Alaska’s statutory lis pendens procedure.⁴ This court has previously held that lis pendens is inappropriate in a shareholder’s action against corporate directors for alleged breach of fiduciary duty and breach of contract rights because such an action is not one affecting “the title to or the right to possession of real property.” Blake v. Gilbert, 702 P.2d 631, 642-43 (Alaska 1985).⁵

The majority sees the prayer for relief in Shuravloff’s complaint asking the court to order an accounting and return of Leisnoi’s assets as sufficient to make the demerger suit a case concerning real estate. The mere request in a complaint for an accounting is not an appropriate basis for the invocation of the lis pendens doctrine. . See Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139 (1975) (lis pendens inappropriate in action by joint venturer to dissolve joint venture, to impose constructive trust on specific parcel and seeking accounting). In determining whether lis pendens is appropriate, courts should look to the gravamen of the complaint in the pending litigation. Rubin-feld v. Mappa, 42 Misc.2d 464, 248 N.Y.S.2d 276 (N.Y.App.Div.1964).⁶ In the present case, Shuravloff’s suit alleged breach of fiduciary duty and illegal material omissions and misstatements in proxy materials seeking approval of the merger between Koniag and Leisnoi. The complaint is devoid of any specific allegations relating to any specific real property, much less the property which Koniag agreed to convey in the Stratman agreement. Because real property was not the subject of Shuravloff’s suit, the majority’s reliance on the doctrine of lis pendens and § 44 of the Restatement (Second) of Judgments is misplaced.

Lis pendens is a doctrine based on public policy and convenience and is predicated on the view that

once a court has taken cognizance of a controversy, it should be impossible to interfere with consummation of the judgment by any ad interim transfer, encumbrance, or change of possession. In support of this view, it has been observed that without the doctrine of lis pendens, litigation could become interminable as a result of mesne conveyances and the ensuing necessity of introducing the transferees as parties, and that on the termination of one action, another would be initiated, with the result that the courts could not effectively determine litigation involving property.

51 Am.Jur.2d Lis Pendens § 3 (1970) (footnotes omitted). Contrary to the majority’s reasoning, the claims of Shuravloff are not inconsistent with the claims of Stratman and Burton arising from the Stratman Agreement. The existence of the Stratman Agreement in no way impaired the ability of the court in the shareholder’s action to award relief for the claims contained therein. The concerns underlying the lis pen-dens doctrine are simply not present in this case.

Though the scope of the majority’s decision is uncertain, the rule of law fashioned by the court today effectively deprives an individual challenging a corporate merger, who has knowledge of pending litigation, of the ability to contract with the corporation without considerable risk that such agreements may ultimately prove unenforceable. By invoking the lis pendens doctrine, the result may be to charge even those unaware of the pending litigation with constructive notice of the litigation, thus precluding them from entering into enforceable agreements involving the transfer of corporate assets. The majority opinion could even be read to deprive a corporation involved in demerger litigation of the authority or capacity to engage in any transaction resulting in the sale, transfer, or exchange of any corporate assets. Regardless of its interpretation, the court’s holding today injects uncertainty and peril into commerce and corporate affairs in contravention of the important public policy interest in enhancing the certainty and finality of contracts.

The majority recognizes the authority of Koniag to enter into binding agreements during the period in which it was merged with Leisnoi. Nonetheless, it gropes futilely to find a sound legal basis to justify its desired result. In my opinion, the clear weight of the evidence does not require reversal. In light of the legal and equitable principles outlined above, and in light of the strong public policy favoring the enforcement of agreements settling disputed claims, see Municipality of Anchorage v. Schneider, 685 P.2d 94, 98 (Alaska 1984), I would leave the parties with the agreement they negotiated for themselves and would affirm the trial court’s balancing of the equities and award of specific performance.

Accordingly, I DISSENT.

APPENDIX

Timeline of Relevant Facts

Date Event

12/18/71 Alaska Native Claims Settlement Act (ANCSA) provides for the establishment of native regional and village corporations. Koniag, Inc. is established as the regional corporation for the Kodiak archipelago.

1974 Leisnoi, Inc. is certified as the village corporation for the village of Woody Island.

1976 Stratman, Burton and others file suit in federal district court against U.S. Department of Interior, Koniag, Leisnoi and others (“decertification litigation”).

1978 Federal district court dismisses the decertification litigation.

12/03/80 Alaska superior court stays and later enjoins the merger of Afognak Native Corporation and Koniag.

12/10/80 Leisnoi merges with Koniag.

09/08/81 United States Court of Appeals for the Ninth Circuit reinstates the decertification litigation as to Stratman and the Burtons.

Date Event

11/11/81 Negotiations begin between Stratman, the Burtons and Koniag to settle the decertification litigation.

12/02/81 Former Leisnoi shareholder Nicholas Shuravloff files derivative class action in state court to set aside merger (“demerger litigation”). Stratman and the Burtons learn of the pending demerger litigation through their attorney.

02/22/82 Shuravloff asks the superior court to enjoin Koniag from settling the decertifi-cation litigation with Stratman and the Burtons.

03/03/82 Stratman and the Burtons sign the “Stratman Agreement.” Agreement provides for dismissal of the decertification litigation and conveyance of land to Stratman and the Burtons.

03/05/82 Koniag approves the Stratman Agreement.

03/18/82 Alaska superior court denies Shuravloff’s request for injunction preventing Koniag from entering into the Stratman Agreement.

01/26/83 Superior court rules that the joint proxy statements which proposed the merger of Leisnoi and Koniag are misleading.

10/10/83 Koniag settles the demerger litigation with Shuravloff. The Stipulation for Settlement states that merger of Leisnoi with Koniag was void ab initio.

01/27/84 Superior court approves demerger settlement in an order incorporating the Stipulation for Settlement.

11/21/85 United States Department of the Interior conveys the surface estate of the disputed land to Leisnoi and the subsurface estate to Koniag.

11/25/85 Leisnoi refuses to honor the terms of the Stratman Agreement regarding conveyance of the disputed land.

1 . During settlement negotiations in the decertifi-cation litigation, a Koniag • attorney who had represented Leisnoi prior to the merger stated his belief that there was a 90% chance that Leisnoi would be decertified if the action was heard on the merits. See footnote 10 of majority opinion.

2 . In footnote 17, the majority refers to Leisnoi as a "nominal defendant” in the demerger litigation. Here, Leisnoi (including its officers, directors, and shareholders) was involved in multiple lawsuits and benefited directly from the final settlements between all parties, ultimately receiving surface rights to over 100,000 acres of public land worth millions of dollars to which they may not have been entitled. It can be nothing more than fiction to say Leisnoi was only a "nominal defendant,” and thus excused from honoring its contractual obligations under the settlement agreement negotiated by its predecessor Koniag with Stratman and the Bur-tons. The result reached by the majority effectively holds Stratman and the Burtons, who were not even “nominal parties” to the demer-ger litigation, accountable for the misdeeds of Leisnoi.

3 .Although, on motion for partial summary judgment, the trial court in the demerger litigation found Leisnoi and Koniag had included material misrepresentations and omissions in the proxy statements, these findings were never reduced to a final judgment.

4 . Alaska Statute 09.45.790 permits the rec-ordation of a notice of the pendency of an action "affecting the title to or the right of possession of real property_" Such rec-ordation gives constructive notice of the pend-ency of such actions.

5 . Other courts have similarly concluded that statutory lis pendens is inappropriate in shareholder suits unless title to specific real property is the central focus of the action. See Pacific Lumber Co. v. Superior Court (Martel), 226 Cal. App.3d 371, 276 Cal.Rptr. 425 (1990) (lis pen-dens inappropriate in former shareholder’s action challenging merger for alleged fraud); 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y.2d 313, 486 N.Y.S.2d 877, 476 N.E.2d 276 (1984) (lis pendens inappropriate in suit for specific performance of contract for sale of stock representing beneficial ownership of real estate; doctrine should be narrowly applied to those suits directly affecting property); Mohican Valley, Inc. v. MacDonald, 443 So.2d 479 (Fla.App.1984) (lis pendens permitted in shareholder derivative suit to cancel deed to specific property allegedly transferred fraudulently); Grossfeld v. Beck, 42 A.D.2d 844, 346 N.Y.S.2d 650 (1973) (lis pendens permitted in shareholder derivative action seeking to impress constructive trust on specific real property but not in action for waste of corporate assets); Cutter v. Cutter Realty Co., 265 N.C. 664, 144 S.E.2d 882 (1965) (lis pendens inappropriate in shareholder derivative action to prevent officers and directors from executing deed conveying title and to rescind contract of sale of land).

6 .In Rubinfeld, the court stated that

[t]he mere fact that the word “realty” or similar words are used in the complaint or that one of the prayers for relief seeks a transfer of title to realty, is not determinative unless supported by appropriate allegations. It is not the title of the action, nor the prayer for judgment, but the facts set out in the complaint which determine the kind and character of the action.

248 N.Y.S.2d at 277.