Merdes & Merdes, P.C. v. Leisnoi, Inc.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MERDES & MERDES, P.C., )
MERDES LAW OFFICE, P.C., and ) Supreme Court No. S-16048
WARD MERDES, )
) Superior Court No. 3AN-13-07180 CI
Appellants, )
) OPINION
v. )
) No. 7212 – November 9, 2017
LEISNOI, INC., )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Brad S. Kane, Kane Law Office, Los Angeles,
California, for Appellants. Katherine Demarest, Dorsey &
Whitney LLP, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Maassen, Bolger, and
Carney, Justices. [Winfree, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
An attorney represented a Native corporation in litigation nearly three
decades ago. The corporation disputed the attorney’s claim for fees, and in 1995, after
the attorney’s death, the superior court entered judgment on an arbitration award of
nearly $800,000 to the attorney’s law firm, then represented by the attorney’s son. The
corporation paid eight installments on the judgment but eventually stopped paying, citing
financial difficulties. The law firm sought a writ of execution for the unpaid balance, and
the writ was granted. The corporation appealed but under threat of the writ paid
$643,760 while the appeal was pending. In a 2013 opinion we held the writ invalid and
required the firm to repay the $643,760.
The corporation was never repaid. The original law firm moved its assets
to a new firm and sought a stay of execution, averring that the original firm now lacked
the funds necessary for repayment. The corporation sued the original firm, the successor
firm, and the son for breach of contract, fraudulent conveyance, conspiracy to
fraudulently convey assets, violations of the Unfair Trade Practices Act (UTPA), unjust
enrichment, and punitive damages. The firm counterclaimed, seeking recovery in
quantum meruit for attorney’s fees it claimed were still owing for its original
representation of the corporation.
The superior court granted summary judgment for the corporation on the
law firm’s quantum meruit claim and, following trial, found that the son and both law
firms fraudulently conveyed assets and were liable for treble damages under the UTPA.
The son and the law firms appeal. They argue that the superior court erred
in these ways: (1) holding that the quantum meruit claim was barred by res judicata;
(2) holding the defendants liable for fraudulent conveyance; (3) awarding damages under
the UTPA; and (4) making mistakes in the form of judgment and award of costs. But
seeing no error or abuse of discretion in the superior court’s decision of most of these
issues, we affirm its judgment, with one exception. We remand for reconsideration of
whether all three defendants are liable for prejudgment interest from the same date.
-2- 7212
II. FACTS AND PROCEEDINGS
The current dispute arose between Leisnoi, Inc., an Alaska Native
corporation, and a law firm, Merdes & Merdes. The history of this case is outlined in our
2013 opinion;1 we summarize it again here.
A. Before 2013
Beginning in 1988 Ed Merdes and Merdes & Merdes, his law firm,
represented Leisnoi in litigation against Omar Stratman over Leisnoi’s title to certain
lands on Kodiak Island.2 Ed Merdes’s representation was based on a contingency fee
agreement entitling him to “an undivided thirty percent . . . interest in all lands and/or
settlement” that Leisnoi obtained or retained as a result of the Stratman litigation.3
Ed Merdes died in 1991, but Merdes & Merdes continued its representation
of Leisnoi through 1992, when litigation in the superior court ended in Leisnoi’s favor
(though appeals continued until 2008).4 Following the favorable judgment, Merdes &
Merdes — represented by Ed’s son Ward Merdes, also an attorney — sought to enforce
the fee agreement, and Leisnoi requested arbitration through the Alaska Bar
Association.5 An arbitration panel awarded Merdes & Merdes a monetary sum roughly
equal to 30% of the value of the land — “$721,000 in attorney’s fees, plus interest,
payable in $100,000 yearly installments” — as well as the $55,000 in attorney’s fees the
1
Leisnoi, Inc. v. Merdes & Merdes, P.C., 307 P.3d 879, 881-84 (Alaska
2013).
2
Id. at 882.
3
Id. (alteration in original).
4
Id. at 882-83 & n.4.
5
Id.
-3­ 7212
superior court had earlier awarded Leisnoi as the prevailing party.6 The superior court
affirmed the arbitration award and entered judgment on it in 1995, and it was not
appealed.7
Leisnoi made six annual $100,000 payments to Merdes & Merdes and two
$50,000 payments.8 But it failed to make its September 2002 payment, citing the cost
of the ongoing Stratman litigation.9
Over the next few years Merdes & Merdes and Leisnoi attempted to
negotiate a settlement of the unpaid balance.10 Leisnoi “generally did not dispute the
validity of the judgment awarded to [Merdes & Merdes] and actively proposed settlement
arrangements.”11 Ward Merdes later explained that he delayed executing on the 1995
judgment because of the negotiations and Leisnoi’s tenuous financial position.12 But
after the last appeal in the Stratman litigation was resolved favorably to Leisnoi, Merdes
& Merdes sought a writ of execution in January 2009, and the superior court granted it
6
Id. at 883.
7
Id.
8
Id.
9
Id.
10
Id. at 883.
11
Id. at 884.
12
Id.
-4- 7212
a year later.13 Leisnoi appealed from the grant of the writ but paid the amount still owing
— $643,760 — while the appeal was pending.14
B. Our 2013 Opinion
In 2013 we reversed the superior court’s grant of the writ of execution. We
held that “Leisnoi’s contingency fee agreement with Merdes violated [the Alaska Native
Claims Settlement Act’s] prohibition against contingency fee agreements, as did the
Arbitration Panel’s fee award, the superior court’s 1995 entry of judgment, and the 2010
writ of execution.”15 Leisnoi was therefore “entitled to recover the balance that it paid
after the writ of execution was unlawfully issued.”16 Leisnoi was not, however, entitled
to relief from the 1995 judgment under Alaska Civil Rule 60(b), because the judgment
was voidable rather than void and Leisnoi waited too long to seek relief from it.17 Thus,
although Leisnoi could recover the $643,760 it paid as a result of the timely-appealed
writ of execution, it could not recover the $800,000 it paid before 2010 based on the
1995 final judgment.18
Though holding the contingency fee agreement invalid, we left the door
open for Merdes & Merdes to seek “any fees it believes are owed under a theory of
13
Id.
14
Id.
15
Id. at 894.
16
Id.
17
Id.
18
Id.
-5- 7212
quantum meruit.”19 In an order on rehearing we “express[ed] no opinion whether Merdes
is entitled to the remedy of quantum meruit” or about the merits of Leisnoi’s potential
defenses to such a remedy because “[t]hese and related issues are matters for the superior
court to address.”20
C. Following Our 2013 Decision
What happened next, according to Leisnoi, is that “Ward Merdes
transferred [Merdes & Merdes’s] assets to himself and to the newly formed Merdes Law
Office, P.C.” in order to avoid returning the $643,760 Leisnoi had paid under threat of
the invalid writ of execution. In March 2013 Merdes & Merdes sought a stay of
execution on our 2013 opinion until its “competing claim” for quantum meruit could be
resolved; Ward Merdes attested by affidavit that Merdes & Merdes “does not have
anywhere near enough money to return $643,760 to Leisnoi pursuant to Supreme Court
Order 6747. It doesn’t have 1/5th of that amount.”
In May 2013 Leisnoi sued Merdes & Merdes, Merdes Law Office, and
Ward Merdes for breach of contract, fraudulent conveyance, conspiracy to fraudulently
convey assets, violations of the UTPA, and unjust enrichment. Merdes21 denied
Leisnoi’s allegations, and Merdes & Merdes filed a counterclaim for its attorney’s fees
framed as a claim for quantum meruit. The superior court granted Leisnoi’s motion for
summary judgment on the counterclaim, concluding that recovery in quantum meruit was
barred by res judicata and the statute of limitations. The court also granted summary
19
Id.
20
Id.
21
Hereafter, because of their common claims, defenses, and representation,
we generally refer to the three defendants in this suit — Merdes & Merdes, Merdes Law
Office, and Ward Merdes — collectively as “Merdes,” identifying individual defendants
where the context requires it.
-6- 7212
judgment for Leisnoi on its first cause of action for breach of contract, ordering Merdes
& Merdes to repay Leisnoi $643,760 plus interest to comply with the mandate of our
2013 opinion.
The court held a five-day bench trial on the remaining claims. It granted
a directed verdict against Leisnoi on the conspiracy claim, citing case law that requires
“[g]eneral creditors” to “reduce their claims to judgment before asserting this cause of
action.”22 But it found that Merdes & Merdes fraudulently conveyed assets to Merdes
Law Office and Ward Merdes. Merdes had defended against that claim by contending
that Merdes Law Office was created not to avoid paying Leisnoi but rather because of
Ward Merdes’s agreement with his nephew that they would create a new law firm
together upon the nephew’s graduation from law school. But as the superior court saw
it, the real issue was not the creation of Merdes Law Office but the use of Merdes &
Merdes’s assets to capitalize it. According to the superior court, “[T]he only reason
Leisnoi was the only creditor of [Merdes & Merdes] left unpaid [after the transfers from
Merdes & Merdes to Merdes Law Office] was because that was the explicit goal of Ward
Merdes.” Because Merdes Law Office “could have happily existed waiting for [the
nephew] to pass the Alaska Bar Exam and did not require capitalization” at the time, the
court found that Merdes Law Office “was capitalized not so it could conduct business,
but to attempt to remove the assets with which [Merdes & Merdes] would pay its debt
to Leisnoi.”
This transfer of assets, the court concluded, was “simply not defensible.”
The court considered eight “badges of fraud” and found that seven of them “weigh[ed]
strongly in favor of finding that the capitalization of [Merdes Law Office] with the assets
of [Merdes & Merdes] was done with the intent to defraud Leisnoi and prevent the
22
Summers v. Hagen, 852 P.2d 1165, 1170 n.6 (Alaska 1993).
-7- 7212
payment of the debt owed to Leisnoi.” The court found that the fraudulent conveyance
was also by definition a deceptive and unfair act for purposes of the UTPA, and that all
three defendants — Merdes & Merdes, Merdes Law Office, and Ward Merdes —
violated the UTPA by participating in the asset transfer. The court therefore voided the
transfers to Merdes Law Office and Ward Merdes and found Merdes & Merdes, Merdes
Law Office, and Ward Merdes jointly and severally liable for Leisnoi’s compensatory
damages. Pursuant to the UTPA the court trebled this amount to $1,931,280.23
Merdes filed this appeal.
III. STANDARDS OF REVIEW
“We review the superior court’s grant of summary judgment de novo and
draw ‘all factual inferences in favor of’ and view ‘the facts in the light most favorable
to the non-prevailing party.’ ”24 We will “affirm a grant of summary judgment ‘when
there are no genuine issues of material fact, and the prevailing party . . . [is] entitled to
judgment as a matter of law.’ ”25
“Application of the doctrine of res judicata presents questions of law which
we review de novo.”26 “Interpretation of the UTPA presents a question of law,”27 as
23
See AS 45.50.531(a) (allowing damages for unlawful trade practices of
“three times the actual damages or $500, whichever is greater”).
24
Peterson v. State, Dep’t of Nat. Res., 236 P.3d 355, 361 (Alaska 2010)
(quoting Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).
25
Id. (alterations in original) (quoting Rockstad, 113 P.3d at 1219).
26
Kent V. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
233 P.3d 597, 600 (Alaska 2010) (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136,
140 (Alaska 2004)).
27
Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255 n.37 (Alaska
(continued...)
-8- 7212
does “[t]he time when prejudgment interest begins to accrue.”28 “Whether an entire type
of damages is allowed”29 and “whether the trial court’s award of damages is based on an
erroneous application of law” are also questions of law.30 “We review such questions
of law de novo, ‘adopt[ing] the rule of law that is most persuasive in light of precedent,
reason, and policy.’ ”31
IV. DISCUSSION
Merdes focuses its appeal on essentially four areas of alleged error:
(1) summary judgment against Merdes & Merdes on its quantum meruit claim; (2) the
finding of liability and award of damages for fraudulent conveyance; (3) the award of
damages for violation of the UTPA; and (4) the award of prejudgment interest.
A. The Superior Court Did Not Err By Granting Summary Judgment On
Merdes & Merdes’s Quantum Meruit Claim.
Merdes first argues that the superior court erred when it granted summary
judgment on the quantum meruit claim on res judicata and statute of limitations grounds.
We address res judicata first and find it dispositive.
27
(...continued)
2007) (citing J.M.R. v. S.T.R., 15 P.3d 253, 256 (Alaska 2001)).
28
Johnson v. Olympic Liquidating Tr., 953 P.2d 494, 497 (Alaska 1998)
(citing Tookalook Sales & Serv. v. McGahan, 846 P.2d 127, 129 (Alaska 1993)).
29
Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013) (citing
Alaska Constr. Equip., Inc. v. Star Trucking, Inc., 128 P.3d 164, 167 (Alaska 2006)).
30
Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 393 (Alaska 2017)
(quoting Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001)).
31
Weimer v. Cont’l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)
(alteration in original) (quoting City of Fairbanks v. Amoco Chem. Co., 952 P.2d 1173,
1176 (Alaska 1998)).
-9- 7212
“The doctrine of res judicata as adopted in Alaska provides that a final
judgment in a prior action bars a subsequent action if the prior judgment was (1) a final
judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute
between the same parties (or their privies) about the same cause of action.”32 “[R]es
judicata bars not only relitigation of the same cause of action, but also new claims arising
from the same transactions as those in the first suit.”33 In this case the superior court held
that because Merdes & Merdes litigated its right to attorney’s fees to a valid final
judgment in 1995, it was not entitled to bring another suit later seeking the same relief
under a different theory. Merdes argues that res judicata does not apply to this case, and
if it does we should apply one of several possible exceptions to the doctrine.
1. A voidable judgment has res judicata effect.
Merdes first contends that the “final judgment on the merits” element of the
res judicata doctrine is not met; it argues that our 2013 decision made the 1995 judgment
unenforceable and thus invalid for purposes of any preclusive effect on its later quantum
meruit claim. We agree that res judicata would not apply if the 1995 judgment were
void.34 But we held in our 2013 decision that the judgment, though erroneous, “was
32
Pister v. State, Dep’t of Revenue, 354 P.3d 357, 362 (Alaska 2015) (quoting
Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997)).
33
Id. (alteration in original) (quoting Plumber, 936 P.2d at 166); DeNardo v.
State, 740 P.2d 453, 456 (Alaska 1987).
34
50 C.J.S. Judgments § 950 (2017) (“A void judgment neither binds nor bars
any one. Thus, a judgment does not merge the cause of action, and constitutes no bar to
further litigation on the same cause of action, where the judgment is void.” (footnotes
omitted)); see also DeNardo, 740 P.2d at 457 (defining void judgment).
-10- 7212
voidable rather than void.”35 A voidable judgment is “legally effective until set aside.”36
It can be appealed directly but is not subject to collateral attack.37
Merdes argues, however, that a judgment is only “valid” for res judicata
purposes if it is enforceable and “the rights of the parties [are] ascertainable from [its]
face.” It is true that the 1995 judgment is no longer enforceable following our 2013
decision. But the purpose of the res judicata doctrine requires us to focus on the finality
of the judgment at the time it was entered and went unappealed. Res judicata is intended
to protect the finality of judgments; its aim is “to prevent parties from again and again
attempting to reopen a matter that has been resolved by a court of competent
35
Leisnoi, Inc. v. Merdes & Merdes, P.C., 307 P.3d 879, 882 (Alaska 2013);
see id. at 892 (“[A]n erroneous judgment is not tantamount to a void judgment; the
superior court’s entry of judgment, while erroneous, did not render the judgment void
or divest the court of jurisdiction.”).
36
RESTATEMENT (SECOND) OF JUDGMENTS ch. 5, intro. note (AM. LAW INST.
1982) (explaining that the distinction between “void” and “voidable” is essentially
“between a judgment that is a nullity ab initio and one that is legally effective until set
aside”).
37
Comm’r, Alaska Dep’t of Health & Soc. Servs. v. Anthony, 709 P.2d 491,
492 (Alaska 1985) (“[This] erroneous procedural ruling . . . was merely voidable, not
void. Therefore, the state’s recourse is to bring a direct challenge to the ruling. The state
may not here collaterally attack an order entered in the [preceding class action].”
(emphasis omitted)); State ex rel. Casselman v. Macken, 235 N.W.2d 867, 869 (Neb.
1975) (“Where the court has jurisdiction of the parties and the subject matter, its
judgment is not subject to collateral attack because the judgment is only voidable and not
void.”); Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990) (“Because the final judgment
is voidable as opposed to void, the rule of res judicata would apply.”); 47 AM. JUR. 2D
Judgments § 711 (2017) (“[G]enerally, in order to collaterally attack a trial court’s
judgment, it must be shown that the judgment is void rather than merely defective or
voidable.”).
-11- 7212
jurisdiction.”38 What matters here is that there was a “final judgment on the merits” in
a case in which Merdes had the opportunity to bring a quantum meruit claim but failed
to do so.39
Merdes agrees that “a quantum meruit theory [was] originally addressed in
the 1994 Arbitration” — though raised by Leisnoi, not Merdes & Merdes. As Merdes
describes the proceedings, Leisnoi “sought to reduce [Merdes & Merdes’s] fee to an
hourly quantum meruit recovery . . . while [Merdes & Merdes] sought to enforce the
contingent fee contract,” and the arbitration award enforced the contract over the
quantum meruit alternative. Merdes & Merdes presumably chose not to pursue quantum
meruit in the original action only because it believed the contract claim to be the more
advantageous option.
Because the 1995 judgment in a case that encompassed quantum meruit
relief was voidable, not void, it operated to bar Merdes & Merdes’s later resurrection of
a quantum meruit claim. The superior court correctly applied the doctrine of res judicata.
38
Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 44 (Alaska 2007)
(quoting State, Child Support Enf’t Div. v. Bromley, 987 P.2d 183, 192 (Alaska 1999)).
39
Patterson v. Infinity Ins. Co., 303 P.3d 493, 497 (Alaska 2013) (“[A]
fundamental tenet of the res judicata doctrine is that it precludes relitigation between the
same parties not only of claims that were raised in the initial proceeding, but also of
those relevant claims that could have been raised then.” (alteration in original) (quoting
Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981))).
-12- 7212
2. The superior court did not refuse to follow Estate of Katchatag.
Merdes argues that the superior court “[r]efused to [f]ollow” our holding
in Estate of Katchatag v. Donohue40 by failing “to recognize: (i) the distinction between
contingent fee agreements and other contracts; and (ii) an attorney’s right to seek
quantum meruit after notice the contract is unenforceable.” In Estate of Katchatag an
attorney sought to recover fees in probate court based on an alleged fee-sharing
agreement with another attorney in a wrongful death case.41 The probate court found
there was no written agreement but gave the attorney 20 days in which to file and support
a quantum meruit claim, which the attorney failed to do.42 The probate court then
approved the award of attorney’s fees out of the estate; it was only afterwards, on a
motion for reconsideration, that the attorney filed an affidavit describing the terms of an
alleged oral fee-sharing agreement.43 The probate court ruled that the attorney had
waived his right to make such a claim.44 Affirming the judgment, we observed in a
footnote that the attorney “was not necessarily foreclosed from claiming damages he may
have incurred in reliance on the [fee-sharing] contract he claims to have made,” but
because he “waived an opportunity to seek a quantum meruit recovery in the probate
40
907 P.2d 458 (Alaska 1995).
41
Id. at 459-60.
42
Id. at 461.
43
Id.
44
Id.
-13- 7212
court,” res judicata “consequently would bar any later attempt to recover the value of
services performed in that case.”45
The superior court’s decision in this case is not contrary to Estate of
Katchatag. Our footnoted dicta left open the possibility of a quantum meruit claim
without guaranteeing its success, just as we did in our 2013 Leisnoi opinion.46 In neither
case was the superior court foreclosed from considering relevant defenses. And our
comments in Estate of Katchatag precluded a quantum meruit claim for any fees the
probate court had already addressed — including those the attorney waived by not timely
asserting the claim when invited to do so.47 Like the attorney in Estate of Katchatag,
Merdes & Merdes declined to seek quantum meruit in the original litigation, even though
it was available as an alternative theory.48 Like the attorney in Estate of Katchatag,
45
Id. at 465 n.18 (citing N. Star Terminal & Stevedore Co. v. State, 857 P.2d
335, 337 (Alaska 1993)).
46
Denying Leisnoi’s petition for rehearing on the 2013 opinion, we explained
that “Merdes may seek recovery in quantum meruit, but Leisnoi is also free to raise its
argument in the superior court that the remedy of quantum meruit is unavailable in light
of the doctrine of res judicata and the statute of limitations.” Leisnoi, Inc. v. Merdes &
Merdes, P.C., 307 P.3d 879, 894 (Alaska 2013).
47
Estate of Katchatag, 907 P.2d at 465 n.18.
48
See, e.g., Vantage Enters., Inc. v. Caldwell, 244 N.W.2d 678, 680 (Neb.
1976) (“[W]e have frequently held that an action on an express contract may be joined
with an action for quantum meruit where the facts arise out of the same
transaction . . . .”); Dean v. Exotic Veneers, Inc., 531 P.2d 266, 269 (Or. 1975) (“Nothing
prevented him from presenting his claim against the receiver on the alternative theories
of express contract and quantum meruit and from having them both adjudicated at the
same time.”).
-14- 7212
Merdes & Merdes was barred from asserting the theory in a later case in order to recover
fees that were at issue in the earlier one.49
3. Merdes & Merdes does not qualify for an exception to res
judicata.
Merdes asks us to apply an exception to res judicata if we would otherwise
hold that the doctrine applies. Merdes argues for the application of exceptions regarding
(1) limitations on theories of the case, (2) inconsistency, (3) promoting a coherent
disposition, and (4) public policy. We conclude that none of these exceptions apply.
First, according to the Restatement (Second) of Judgments, res judicata
should not bar a claim that relies on a theory the plaintiff was unable to pursue in the
earlier action “because of the limitations on the subject matter jurisdiction of the courts
[in that earlier action] or restrictions on their authority to entertain multiple theories or
demands for multiple remedies or forms of relief in a single action.”50 But in this case
there were no formal barriers to the arbitration panel’s or the superior court’s exercise
49
Estate of Katchatag, 907 P.2d at 465 n.18; see also Vantage Enters., 244
N.W.2d at 680 (reasoning that although plaintiff had information to bring a quantum
meruit claim in the initial action, “[i]t chose not to do so, but elected to take a chance on
a favorable verdict, reserving to itself another ‘bite of the apple’ in the event it failed in
the first suit . . . , and as a matter of public policy, it should not be permitted to do this”);
Exotic Veneers, 531 P.2d at 269 (“Having once litigated his [contract] claim against
defendant, he should be foreclosed from further litigation on all grounds or theories of
recovery which could have been litigated in the first instance. The public policy to be
served by the doctrine of res judicata prevents him from having two bites at the apple.”);
RESTATEMENT (FIRST) OF JUDGMENTS § 65 cmt. d (AM. LAW INST. 1942) (“Where the
plaintiff brings an action seeking one of these remedies and judgment is given for the
defendant on the merits, the plaintiff is precluded from subsequently maintaining an
action in which he seeks the other remedy.”).
50
RESTATEMENT (SECOND) OF JUDGMENTS § 26(1)(c) (AM. LAW INST. 1982).
-15- 7212
of jurisdiction over a quantum meruit claim, as contemplated by this exception;51 the
arbitration panel did, in fact, consider and reject the claim. This jurisdictional exception
to the res judicata doctrine therefore does not apply.
Second, Merdes relies on an exception that applies when “[t]he judgment
in the first action was plainly inconsistent with the fair and equitable implementation of
a statutory or constitutional scheme.”52 Merdes points to Alaska Bar Rules 34 through
42 as creating a scheme that “appl[ies] with the force of law” and that allows a lawyer
to seek quantum meruit recovery if a fee agreement is unenforceable. But here “[t]he
judgment in the first action” — the 1995 judgment on the fee contract — was not
“plainly inconsistent” with these rules. And there is nothing in the Bar Rules that
prevents a court from applying the usual principles of claim and issue preclusion to
attorneys’ actions to recover on fee agreements.
Third, Merdes relies on an exception where “[i]t is clearly and convincingly
shown that the policies favoring preclusion of a second action are overcome for an
extraordinary reason, such as . . . the failure of the prior litigation to yield a coherent
disposition of the controversy.”53 Merdes argues that now that it must return the
$643,760, “[t]he only way to make a coherent disposition is to allow [Merdes & Merdes]
to seek the balance owed under quantum meruit.” But we disagree. As Leisnoi points
out, the comment to Restatement (Second) of Judgments § 26(1)(f) limits this
exception’s applicability to “a small category of cases in which the policies supporting
51
Id. § 26 cmt. c (“The formal barriers referred to may stem from limitations
on the competency of the system of courts in which the first action was instituted, or
from the persistence in the system of courts of older modes of procedure . . . .”).
52
Id. § 26(1)(d).
53
Id. § 26(1)(f).
-16- 7212
merger or bar may be overcome” and clarifies that the exception “is not lightly to be
found.”54 The Restatement’s examples of cases in which the exception might apply
include those concerning the “validity of a continuing restraint or condition having a
vital relation to personal liberty,” “civil commitment of the mentally ill,” “the custody
of a child,” and divorce.55 In these circumstances there is “need for greater flexibility
and . . . for special legislative treatment.”56 An attorney’s fee dispute does not present
such a case.
Finally, Merdes argues that as a matter of public policy, “simple justice
requires that the doctrine of res judicata be tempered to allow [Merdes & Merdes] an
opportunity to prove its quantum meruit claim and vindicate Ward Merdes’s belief in that
claim.” Given the circumstances of this case — in which both parties are burdened in
different ways by the voidable 1995 judgment — we do not see that public policy favors
a particular result. Leisnoi paid approximately $800,000 to Merdes & Merdes despite
the invalidity of the fee agreement and was time-barred from later recovering that
amount under Civil Rule 60(b); on the other hand, Merdes & Merdes recovered
approximately $800,000 but could recover no more.57 Merdes now values the quantum
meruit claim as between $875,000 and $1.7 million. Its recovery of approximately
54
Id. § 26 cmt. i.
55
Id.
56
Id.
57
Our 2013 opinion described payments totaling $700,000. Leisnoi, Inc. v.
Merdes & Merdes, P.C., 307 P.3d 879, 884 (Alaska 2013). In their briefs on this appeal,
however, both parties describe the amount paid as “roughly $800,000” or simply
“$800,000.” We do not resolve the discrepancy but accept the number on which the
parties appear to agree.
-17- 7212
$800,000 on this claim satisfies us that there is no serious unfairness in this case resulting
from application of the res judicata doctrine.
Because none of the exceptions apply, we affirm the superior court’s
decision on summary judgment that the quantum meruit claim was barred by res judicata.
We need not address the statute of limitations, the alternative basis for the court’s
decision.
B. The Superior Court Did Not Err In Its Rulings On Leisnoi’s
Fraudulent Conveyance Claim.
The superior court found after trial that Merdes was liable on Leisnoi’s
claim for fraudulent conveyance, a finding Merdes attacks on several grounds. First,
Merdes argues that a claim for fraudulent conveyance presupposes that the plaintiff has
a judgment covering the thing fraudulently conveyed, and Leisnoi lacked a judgment
requiring Merdes to repay the $643,760. Second, Merdes argues that damages for
fraudulent conveyance depend on proof that simply voiding the conveyance is not an
adequate remedy, and that the superior court therefore erred by awarding damages for
fraudulent conveyance.
Alaska Statute 34.40.010 declares void any conveyance made with an
“intent to hinder, delay, or defraud creditors” from recovering a debt.58 “The intent to
58
See Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 796
(Alaska 2002) (“The prohibition against fraudulent conveyances has been codified in
Alaska law.” (citing AS 34.40.010)). The statute reads in full:
Except as provided in AS 34.40.110, a conveyance or
assignment, in writing or otherwise, of an estate or interest in
land, or in goods, or things in action, or of rents or profits
issuing from them or a charge upon land, goods, or things in
action, or upon the rents or profits from them, made with the
intent to hinder, delay, or defraud creditors or other persons
(continued...)
-18- 7212
defraud through a conveyance is a question of fact usually to be proved by circumstantial
evidence.”59 Although “[m]any circumstantial factors can indicate the existence of
fraud,” we have held that “[b]adges of fraud must be viewed within the context of each
particular case.”60 Badges of fraud may include the following: “(1) inadequate
consideration, (2) transfer in anticipation of a pending suit, (3) insolvency of the
transferor, (4) failure to record, (5) transfer encompasses substantially all the transferor’s
property, (6) transferor retains possession of the transferred premises, (7) transfer
completely depletes transferor’s assets, and (8) relationship of the parties.”61 In this case
the superior court found that seven of these badges of fraud “weigh[ed] strongly in favor
of finding that the capitalization of [Merdes Law Office] with the assets of [Merdes &
Merdes] was done with the intent to defraud Leisnoi and prevent the payment of the debt
owed to Leisnoi.” Merdes does not attack any of the superior court’s findings of fact on
this appeal.
1. Leisnoi was entitled to bring a fraudulent conveyance claim.
Merdes argues that it was error to allow Leisnoi to assert a fraudulent
conveyance claim without a “right to [the] property [that was allegedly fraudulently
conveyed] created by a judgment,” and it highlights a supposed disconnect between
58
(...continued)
of their lawful suits, damages, forfeitures, debts, or demands,
or a bond or other evidence of debt given, action commenced,
decree or judgment suffered, with the like intent, as against
the persons so hindered, delayed, or defrauded is void.
59
Shaffer v. Bellows, 260 P.3d 1064, 1068 (Alaska 2011) (quoting Nerox
Power, 54 P.3d at 796).
60
Id. (quoting Nerox Power, 54 P.3d at 796).
61
Id. at 1068-69 (quoting Gabaig v. Gabaig, 717 P.2d 835, 839 n.6 (Alaska
1986)).
-19- 7212
Leisnoi’s conspiracy to fraudulently convey claim — which the superior court rejected
on a motion for directed verdict — and Leisnoi’s fraudulent conveyance claim — on
which the superior court found for Leisnoi following trial. Merdes argues that the
superior court should have rejected both claims.
Granting a directed verdict on the conspiracy claim, the superior court
relied on Summers v. Hagen62 to conclude that Leisnoi’s failure to reduce our 2013
opinion to a money judgment was fatal. In Summers we recognized “a novel theory of
liability in Alaska”: a creditor’s cause of action for damages against the grantee of
property for a “fraudulent conveyance scheme.”63 In reaching this decision we rejected
the grantee’s argument “that creditors’ rights should be strictly limited to the remedy
provided for by the Fraudulent Conveyances Act, AS 34.40.010.”64 But we required
general creditors to “reduce their claims to judgment before asserting this cause of
action” for damages, because “[p]rior to judgment, general creditors have no legal right
to the property fraudulently conveyed.”65
Unlike the law of conspiracy developed judicially in this context, the
fraudulent conveyance statute does not require a money judgment as the basis of a viable
claim to void a conveyance. Alaska Statute 34.40.010 broadly protects against transfers
“made with the intent to hinder, delay, or defraud creditors or other persons of their
lawful suits, damages, forfeitures, debts, or demands, or a bond or other evidence of debt
given, action commenced, decree or judgment suffered, with the like intent.” The
question here is whether our 2013 opinion provides the basis for an action on the statute.
62
852 P.2d 1165 (Alaska 1993).
63
Id. at 1167-70.
64
Id. at 1169-70.
65
Id. at 1170 n.6.
-20- 7212
Although the Alaska Rules of Civil Procedure have special requirements for the form of
“judgments for the payment of money”66 that our 2013 opinion did not satisfy, Alaska
Appellate Rule 507(a) states that “[t]he opinion of the appellate court, or its order under
Rule 214, shall constitute its judgment.” Indeed, Merdes acknowledged Leisnoi’s legal
entitlement when it sought a “stay of execution” from paying “$643,760 to Leisnoi
pursuant to Supreme Court Order 6747.”67 And regardless of whether Leisnoi had a
money judgment, there is no doubt that our opinion established that Leisnoi had a
“lawful suit[], . . debt[], or demand[]” that fell within the broad protection of the statute.
We conclude, therefore, that the superior court’s decisions of the fraudulent
conveyance claim and the conspiracy to fraudulently convey claim were not inconsistent
but in each instance followed the governing law.
66
Alaska Civil Rule 58.2 requires money judgments to be in the form
demonstrated in a sample and to specify certain details, such as the portion of principal
that accrues prejudgment interest and the prejudgment interest rate. Merdes highlights
the rule’s language that “[e]very judgment must be set forth on a separate document
distinct from any findings of fact, conclusions of law, opinion or memorandum.” But
Alaska Appellate Rule 507(a) supersedes the separate document requirement for
appellate opinions and judgments. Merdes argues that the court of appeals in Malutin
v. State, 198 P.3d 1177, 1181-82 (Alaska App. 2009), made “it clear that an appellate
court’s decision is not an enforceable judgment at all.” (Emphasis omitted.) But in
Malutin the court of appeals, examining the history of Rule 507, concluded that Rule
507(a) was intended to eliminate the requirement that appellate courts issue separate
mandates with their instructions to the lower court. Id. at 1183.
67
See also AS 22.05.020(b) (vesting this court “with all power and authority
necessary to carry into complete execution all its judgments, decrees, and determinations
in all matters within its jurisdiction”).
-21- 7212
2. The superior court did not erroneously award fraudulent
conveyance damages.
Merdes argues that the superior court erred in awarding Lesnoi $643,760
on its fraudulent conveyance claim when there was no showing that simply voiding the
transfers was not an adequate remedy.68 We held in Summers — when discussing
damages for a conspiracy claim — that “[i]f the fraudulent conveyance remedy, i.e.,
voiding the transfer as to the creditor, is adequate, the plaintiff is not entitled to
damages.”69 But if voiding the transfer is not adequate, then “the plaintiff is entitled to
damages equalling the lesser of the value of the property fraudulently transferred or the
amount of the debt.”70
It is well established that the usual remedy for fraudulent conveyance is
voiding the transfers.71 Alaska’s statutory provision prohibiting fraudulent transfers does
not provide any additional remedy.72 Although Leisnoi will not be made whole until it
68
Merdes cites Lockhart v. Draper, 209 P.3d 1025, 1028 (Alaska 2009), as
resolving this question. But Lockhart did not address whether compensatory damages
could be awarded in addition to voiding the transfers; it instead considered whether an
equitable remedy was an independent form of relief sufficient to support an award of
punitive damages in the absence of compensatory damages. Id.
69
Summers, 852 P.2d at 1170.
70
Id.
71
37 AM. JUR. 2D Fraudulent Conveyances and Transfers § 116 (2013) (“As
a general rule, the relief to which a defrauded creditor is entitled in an action to set aside
a fraudulent conveyance is limited to setting aside the conveyance of the property which
would have been available to satisfy the judgment had there been no conveyance.”).
72
AS 34.40.010 is silent about damages and only states that a fraudulent
conveyance “is void.” Punitive damages may be available for particularly egregious
misconduct even without compensatory damages, but Leisnoi does not appeal the
(continued...)
-22- 7212
is paid the full amount of the judgment, the purpose of the fraudulent conveyance action
is only to ensure that transferred assets are once again available when Leisnoi seeks to
collect from Merdes. If voiding the transaction will return sufficient funds to pay the
debt, as it may here,73 the creditor pursuing only a fraudulent conveyance claim is not
entitled to compensatory damages as well.
But in this case, before the fraudulent conveyance claim went to trial, the
superior court had already granted summary judgment to Leisnoi on its breach of
contract claim and ordered Merdes & Merdes “to repay the $643,760 with interest”
because of our 2013 decision. The superior court’s later decision following trial
analyzed the evidence and legal underpinnings of the fraudulent conveyance and UTPA
claims and “order[ed] the following remedies,” including compensatory damages, treble
damages, and voiding the transfers. The court never tied the compensatory damage
award specifically to the fraudulent conveyance claim. The same amount of
compensatory damages was independently supported by the court’s decisions on the
breach of contract claim (previously decided against Merdes & Merdes on summary
judgment) and the UTPA claim (decided against all three defendants following trial).
We therefore reject Merdes’s argument that the superior court erred by
awarding fraudulent conveyance damages. It does not appear to us that the superior
court did award damages separately for that claim; the fraudulent conveyance remedy
72
(...continued)
superior court’s denial of punitive damages. See, e.g., Lockhart, 209 P.3d at 1028
(“[T]he court did not err in finding that punitive damages could be awarded if an
equitable remedy intended to make the plaintiff whole [i.e., voiding transfers] had been
awarded and if the requirements of [the punitive damages provision] are met.”).
73
The transfers from Merdes & Merdes to Merdes Law Office were calculated
by Leisnoi’s expert to total about $3.1 million, exceeding the amount Merdes owed
Leisnoi.
-23- 7212
simply returned transferred assets to Merdes & Merdes, facilitating Leisnoi’s collection
of damages to which it was otherwise entitled.74
C. The Superior Court Did Not Err By Awarding UTPA Damages.
The Unfair Trade Practices Act declares “unfair or deceptive acts or
practices in the conduct of trade or commerce . . . to be unlawful.”75 “As a general
matter, a prima facie case of unfair or deceptive acts or practices under the UTPA
requires proof of two elements: ‘(1) that the defendant is engaged in trade or commerce;
and (2) that in the conduct of trade or commerce, an unfair act or practice has
occurred.’ ”76 “[B]ecause the UTPA is a remedial statute, its language should be liberally
construed.”77
In this case the superior court, after concluding that “[a] plaintiff can sue
attorneys for violations of the [UTPA],” found that “by definition, having found that
[Merdes & Merdes] and Ward Merdes intended to defraud Leisnoi, they also engaged
in a deceptive and unfair act [by] which they intended to deceive Leisnoi.” Merdes
challenges this conclusion on several grounds.
74
Merdes also argues that it is impossible to calculate damages without a
dated final judgment because under Summers, 852 P.2d at 1170, fraudulent conveyance
damages are determined by the value of the fraudulently conveyed assets at the time of
the conveyance or when the debt is reduced to judgment, whichever is later. But this rule
does not apply to damages based on breach of contract or the UTPA.
75
AS 45.50.471(a).
76
Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1255 (Alaska 2007)
(quoting State v. O’Neill Investigations, Inc., 609 P.2d 520, 534 (Alaska 1980)).
77
Alaska Tr., LLC v. Bachmeier, 332 P.3d 1, 10 (Alaska 2014) (citing State
v. First Nat’l Bank of Anchorage, 660 P.2d 406, 412 (Alaska 1982)).
-24- 7212
1. Merdes engaged in a trade or business and its conduct was
within the scope of that trade or business.
The superior court concluded that Leisnoi was both a “consumer” and a
“creditor” at the time of Merdes’s deceptive or unfair conduct: “Leisnoi became a
consumer of [Merdes & Merdes] when it sought legal services” and the $643,760 debt
to Leisnoi was “part of Leisnoi’s consumer relationship with [Merdes & Merdes].” The
court concluded that these were entrepreneurial or business aspects of the practice of law
that were subject to the UTPA.78
Merdes argues, however, that the dispute over the $643,760 did not arise
in a business context. It asserts that during the time the alleged violations occurred
Leisnoi was neither client nor consumer but rather a “potential judgment creditor,” and
that Merdes, as a debtor, should not be subject to the UTPA.
We have held that debt collectors may be subject to the UTPA insofar as
their business is debt collection.79 We have applied the UTPA to attorneys’ debt-
collection activities80 and to the “post-sale” conduct of others. In Kenai Chrysler we
upheld a jury verdict against a car dealer which “every step of the way . . . actively
fought to defeat . . . efforts to rescind [a] sale” to a developmentally disabled buyer who
lacked the capacity to contract.81 Considering the “totality of the[] circumstances” —
78
Jones v. Westbrook, 379 P.3d 963, 969 (Alaska 2016) (“Attorneys are not
exempt from liability under the UTPA; its regulatory system coexists with the mandates
of the Alaska Rules of Civil Procedure and Rules of Professional Conduct.” (citing
Pepper v. Routh Crabtree, APC, 219 P.3d 1017, 1023-25 (Alaska 2009))).
79
O’Neill Investigations, 609 P.2d at 534 (holding debt collection agency was
“engaged in trade or commerce as a business entity” and liable under the UTPA).
80
Routh Crabtree, 219 P.3d at 1024-25.
81
Kenai Chrysler, 167 P.3d at 1256.
-25- 7212
including the dealer’s insistence that the contract was valid, its continued attempts to deal
directly with the buyer despite his guardians’ intervention, and its failure to timely
request legal advice on the subject — we upheld the jury’s finding of unfair conduct in
the dealer’s post-sale attempts to enforce what it argued was a valid contract.82
As in Kenai Chrysler, Merdes’s attempts to recover the money it claimed
to be owed were “in the conduct of trade or commerce”83 and covered by the UTPA. It
is true that in 2013 the roles of creditor and debtor flipped: Leisnoi, which had been the
debtor, became Merdes’s creditor because of the overpayment and Merdes’s obligation
to return it. It is true that consumer protection laws are often invoked to protect debtors,
who may be particularly vulnerable to unfair and deceptive practices.84 But there is no
hard and fast rule that a creditor lacks UTPA protection simply because of its status as
creditor. Leisnoi’s overpayment, and Merdes’s attempts to avoid returning it, are simply
successive stages in the same covered activity rooted in Merdes & Merdes’s provision
of legal services to Leisnoi.
Relatedly, Merdes argues that the conduct at issue arose in an adversarial,
litigation-based relationship rather than “a protected ‘business relationship.’ ” We find
this argument similarly unpersuasive. The transfer of assets occurred wholly outside the
context of judicial proceedings. And although the original debt was reduced to judgment
through litigation, it arose from the provision of legal services. Fee disputes are an
aspect of the business relationship between an attorney and client, just as payment
82
Id. at 1256-57.
83
AS 45.50.471(a).
84
See, e.g., O’Neill Investigations, 609 P.2d at 529-30 (describing federal
regulation of debt-collection activities).
-26- 7212
disputes may be a part of any service contract. That the relationship devolves into
litigation does not erase its origins in “trade or commerce.”
2. Merdes’s conduct was an “unfair or deceptive practice.”
The superior court found that “by definition, having found that [Merdes &
Merdes] and Ward Merdes intended to defraud Leisnoi, they also engaged in a deceptive
and unfair act” under the UTPA. The court added that “[i]mplicit in these findings is that
[Merdes Law Office] was part and parcel of the deceptive and unfair acts.”
A practice must be either unfair or deceptive to be covered by the UTPA.85
When determining whether a practice is unfair under the broad prohibition of
AS 45.50.471(a), we have adopted a “multi-factored approach” that considers:
(1) whether the practice, without necessarily having been
previously considered unlawful, offends public policy as it
has been established by statutes, the common law, or
otherwise — whether, in other words, it is within at least the
penumbra of some common-law, statutory, or other
established concept of unfairness; (2) whether it is immoral,
unethical, oppressive, or unscrupulous; [and] (3) whether it
causes substantial injury to consumers . . . .[86]
In contrast, “whether an act is ‘deceptive’ is determined simply by asking whether it ‘has
the capacity or tendency to deceive.’ ”87
The superior court’s findings on unfairness were consistent with our multi-
factor test. First, transferring assets to avoid paying a debt is more than simply within
85
Borgen v. A & M Motors, Inc., 273 P.3d 575, 591 (Alaska 2012) (“The two
terms [“unfair” and “deceptive”] are used in the disjunctive in section .471(a), and either
will suffice to give rise to liability.”).
86
Id. at 590 (quoting Kenai Chrysler, 167 P.3d at 1255).
87
Id. at 591 (quoting ASRC Energy Servs. Power & Commc’ns, LLC v.
Golden Valley Elec. Ass’n, 267 P.3d 1151, 1160 (Alaska 2011)).
-27- 7212
“the penumbra of some common-law, statutory, or other established concept of
unfairness” — it is prohibited by statute.88 Second, the superior court found that “the
true and primary intention of [the transfers was] to keep the $643,760 out of the reach
of Leisnoi”; when an attorney acts with fraudulent intent it is most likely unethical, as
Merdes acknowledges in its brief.89 And third, the transfers caused a substantial harm
by denying Leisnoi access to funds from which it could satisfy a valid debt. Thus, all
three factors support a finding that the transfers were unfair for purposes of the UTPA.
Merdes focuses on a single sentence in the superior court’s decision, where
it pointed to a “statement [by Ward Merdes] to [Leisnoi’s attorney] that [Merdes &
Merdes] no longer ha[d] assets to pay Leisnoi” as evidence of Merdes’s intent to defraud
Leisnoi. Merdes argues that this statement was made during litigation and was mere
“puffing,” which is not actionable under the UTPA. But we read the court’s reliance on
that statement not as identifying the deception at issue but as further support for its
finding of intent to defraud. The deceptive and unfair act was the fraud itself — “the
capitalization of [Merdes Law Office] with the assets of [Merdes & Merdes] . . . done
with the intend to defraud Leisnoi and prevent the payment of the debt owed to Leisnoi,”
which the court had already described extensively by reference to the “badges of fraud.”
3. The Alaska Bar Rules do not exempt Merdes from UTPA
liability.
Merdes argues that “Leisnoi can’t have it both ways” and pursue both the
UTPA and Alaska Bar discipline; according to Merdes the UTPA exempts activities
regulated by a state entity like the Alaska Bar Association, and the superior court’s
88
AS 34.40.010.
89
Merdes argues that “[i]f Ward Merdes, in his role as an attorney, defrauded
his client,” it is a violation of professional ethics rules and the UTPA should not be
interpreted to govern the same conduct. We address this argument below.
-28- 7212
finding of UTPA liability usurps our authority over attorney discipline.90 But our
decision in Pepper v. Routh Crabtree, APC forecloses both these arguments.91
Alaska Statute 45.50.481(a)(1) “exempts unfair acts and practices from the
purview of the UTPA ‘only where [(1)] the business is both regulated elsewhere and
[(2)] the unfair acts and practices are therein prohibited.’ ”92 Merdes asserts that its
alleged misconduct — mishandling of client funds — “is at the very core of the State
Bar’s regulatory mission and subject to its strictest oversight,” unlike the third-party
debt-collection activities at issue in Routh Crabtree. (Emphasis in original.) But “[w]e
have held that the Rules of Civil Procedure and the Rules of Professional Conduct are
not the type of ongoing, careful regulation required to trigger an exemption under
subsection .481(a)(1)” of the UTPA.93 Merdes’s argument does not persuade us
otherwise.
Merdes also asserts that the superior court “used the UTPA to take
regulatory decisions away from” this court and the Alaska Bar Association because the
superior court’s decision would “put the Merdes Defendants out of business through the
imposition of UTPA treble damages.” But in Routh Crabtree we approved an
observation made by both the Washington and Connecticut supreme courts that “ ‘the
judicial disciplinary system and consumer protection laws have different functions’ and
90
Merdes asserts in its brief that Leisnoi filed a bar grievance related to Ward
Merdes’s conduct. The record of that matter is not before us.
91
219 P.3d 1017, 1024-25 (Alaska 2009).
92
Id. at 1024 (alterations and emphasis in original) (quoting Smallwood v.
Cent. Peninsula Gen. Hosp., 151 P.3d 319, 329 (Alaska 2006)).
93
Id. at 1024 (citing Matanuska Maid, Inc. v. State, 620 P.2d 182, 186
(Alaska 1980)).
-29- 7212
that there was ‘no reason why they cannot coexist.’ ”94 “[T]he attorney disciplinary
system and consumer protection laws can coexist as long as the legislature does not
purport to take away this court’s exclusive power to admit, suspend, discipline, or
disbar.”95 Despite the substantiality of the money judgment in this case, it does not in
and of itself exclude Ward Merdes from bar membership or prevent him from practicing
as an attorney. The imposition of liability under the UTPA does not unconstitutionally
infringe on our authority to regulate the practice of law.
Merdes urges us to reconsider Routh Crabtree to the extent it allows the
application of the UTPA to attorney conduct that the Bar also regulates.96 We did state
in Routh Crabtree that “[i]n rejecting these arguments here, we do not mean to foreclose
the possibility that future litigants might address these issues more persuasively on
appeal.”97 But we recently reaffirmed that attorney conduct is not exempt from UTPA
liability,98 and Merdes’s arguments do not persuade us that we were mistaken.
94
Id. (discussing Short v. Demopolis, 691 P.2d 163, 170 (Wash. 1984) (en
banc) (citing Heslin v. Conn. Law Clinic of Trantolo & Trantolo, 461 A.2d 938 (Conn.
1983))).
95
Id. at 1024-25.
96
Merdes implies that the holdings were part of an “alternative analysis” and
we “expressly did not affirm the trial court based on the reasoning” we rely on here.
(Emphasis omitted.) But Routh Crabtree reversed the trial court’s decision; implicit in
the reversal was our rejection of alternative grounds for affirmance. Id. at 1025.
97
Id. at 1025 n.51.
98
Jones v. Westbrook, 379 P.3d 963, 969 (Alaska 2016) (“Attorneys are not
exempt from liability under the UTPA; its regulatory system coexists with the mandates
of the Alaska Rules of Civil Procedure and Rules of Professional Conduct.” (citing Routh
Crabtree, 219 P.3d at 1023-25)).
-30- 7212
4. The superior court properly trebled Leisnoi’s damages.
Under the UTPA, “[a] person who suffers an ascertainable loss of money
or property as a result of another person’s” unfair or deceptive practice “may bring a
civil action to recover for each unlawful act or practice three times the actual damages
or $500, whichever is greater.”99 Merdes argues that because the fraudulent conveyance
remedy does not include monetary damages, “[t]here is nothing to treble.” But the court
awarded $643,760 in compensatory damages for Leisnoi’s breach of contract claim,
which also provided the basis for “actual” UTPA damages.100
Merdes argues that there is no causal link between the alleged unfair
conduct and the damages awarded. It again focuses on Ward Merdes’s statement about
Merdes & Merdes’s insolvency, arguing that the statement, even if deceptive, could not
have caused Leisnoi to pay $643,760 three years earlier. But it was not Leisnoi’s
payment of the money that was the deceptive or unfair conduct, but rather Merdes’s later
actions to avoid repaying it. But for the fraudulent transfers, Leisnoi would have been
able to recover what it was owed.101
Merdes also argues that this case could result in “a double recovery” and
a “legal quagmire” because in addition to the superior court judgment for treble damages,
“Leisnoi can still attempt to reduce this Court’s 02/01/13 Decision on its original claims
99
AS 45.50.531(a).
100
Black’s Law Dictionary defines actual damages as “[a]n amount awarded
to a complainant to compensate for a proven injury or loss; damages that repay actual
losses.” Damages, BLACK’S LAW DICTIONARY (10th ed. 2014).
101
Merdes’s reply brief also raises the new argument that Leisnoi did not
suffer an “ascertainable loss” because it did not “bargain” for the debt. But Merdes
waived this argument. Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010) (“Because
we deem waived any arguments raised for the first time in a reply brief, we do not here
reach the merits of these issues.”).
-31- 7212
to a judgment in the original amount of $643,670 and seek to enforce it.” But the
superior court’s decisions clearly state that the $643,670 owed under our 2013 decision
is the basis of the compensatory damage award. We do not share Merdes’s fear that this
will be misinterpreted.
D. The Award Of Prejudgment Interest Was Not Erroneous Except For
The Application Of The Same Starting Date To All Three Defendants.
The revised final judgment included an award of prejudgment interest of
$140,956.98 on the amount of the overpayment, $643,760, calculated from July 28,
2010. Merdes argues that prejudgment interest should run instead from early 2013,
following the publication of our opinion — from either the date of a letter from Leisnoi
to Merdes demanding repayment or the date Leisnoi filed suit two months later. Under
AS 09.30.070(b), “prejudgment interest accrues from the day process is served on the
defendant or the day the defendant received written notification that an injury has
occurred and that a claim may be brought against the defendant for that injury, whichever
is earlier.” “[D]espite AS 09.30.070(b)’s express reference to written notice, the
‘statutory requirement of written notice may be satisfied by proof of actual notice.’ ”102
Leisnoi contends that Merdes had “actual notice that Leisnoi demanded
return of the money” at the time Leisnoi paid it — July 28, 2010 — “because Leisnoi had
already appealed the writ requiring Leisnoi to pay that amount.” Although initially
siding with Merdes on this issue, the superior court ultimately adopted Leisnoi’s
position, and we agree that this was correct. Merdes had actual notice in July 2010 that
Leisnoi continued to contest Merdes’s entitlement to the money and would demand
repayment, with interest, if Leisnoi prevailed on appeal. There is no unfairness in
holding Merdes & Merdes to that date.
102
Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 645 (Alaska 2007)
(quoting McConkey v. Hart, 930 P.2d 402, 404 (Alaska 1996)).
-32- 7212
Merdes also argues that the court erred when it included the prejudgment
interest amount in the total judgment for which all three defendants are liable, because
repaying Leisnoi’s overpayment was the obligation of Merdes & Merdes alone. Merdes
points to the superior court’s earlier written decision on Merdes’s objections to Leisnoi’s
proposed judgment, in which the court ruled that because “only Merdes & Merdes is
liable for the underlying debt . . . , only Merdes & Merdes is liable for the prejudgment
interest on that debt.” Merdes calls the inclusion of the amount in the final judgment
against all defendants “plain error warranting reversal.”
We agree that the overpayment was, as of July 2010, Merdes & Merdes’s
obligation alone; Merdes Law Office and Ward Merdes did not become liable for it until
judgment was entered against them jointly and severally in this lawsuit. We remand this
issue so the superior court can either explain why the same prejudgment interest
commencement date applies to all three defendants or recalculate prejudgment interest
to reflect the different dates on which they became liable for the underlying debt.103
V. CONCLUSION
The judgment of the superior court is AFFIRMED except for the
application of prejudgment interest to the various defendants. We REMAND that issue
for further consideration.
103
Merdes also argues that the superior court erred by making an excessive
award of costs in the final judgment. But Leisnoi concedes this was error and points out
that the superior court corrected it in the revised final judgment. We see no reason to
address the issue further.
Last, Merdes asks that we reassign the case on remand to a different trial
judge. No recusal motion was made below, and we do not consider the issue in the first
instance.
-33- 7212