Ivy v. Calais Company, 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,
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THE SUPREME COURT OF THE STATE OF ALASKA
DEBORAH KYZER IVY, Individually )
and as a Derivative Plaintiff on behalf of ) Supreme Court No. S-15967
the interests of CALAIS COMPANY, )
INC., and its SHAREHOLDERS, ) Superior Court No. 3AN-07-08813 CI
)
Appellant, ) OPINION
)
v. ) N o. 7176 – June 2, 2017
)
CALAIS COMPANY, INC., C.R. )
“KELLY” FOSS, Individually, and as a )
Shareholder and Former President and )
Board Member of CALAIS COMPANY, )
INC., JUDY FOSS, Individually and as )
President and Board Member and Share- )
holder of CALAIS COMPANY, INC., )
THE C.R. FOSS LIVING TRUST, )
McMAC FAMILY, LLP, THE RODNEY )
L. JOHNSTON TRUST, BRIAN W. )
DURRELL, Individually, and DURRELL )
LAW GROUP, PC, WELLS FARGO )
ALASKA TRUST COMPANY, NA, )
JOHN MCMANAMIN, as a Shareholder )
and Officer, and Former Officer and )
Board Member and General Manager of )
CALAIS COMPANY, INC. (but not )
individually), MATTHEW SWEENEY, )
Individually and as Putative Director of )
CALAIS COMPANY, INC., MICHAEL )
PETERSON, as a Board Member and )
Shareholder of CALAIS COMPANY, )
INC. (but not individually), and JANE/ )
JOHN DOE(S) I to XX )
CONSPIRATORS, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Phillip Paul Weidner and Lisa Rosano, Phillip
Paul Weidner & Associates, APC, Anchorage, and Charles E.
Cole, Law Offices of Charles E. Cole, Fairbanks, for
Appellant. Jeffrey M. Feldman, Summit Law Group, Seattle,
Washington, and Susan Orlansky, Reeves Amodio LLC,
Anchorage, for Appellees Calais Company, Inc., J. Foss, The
C.R. Foss Living Trust, McMac Family, LLP,
J. McManamin, M. Sweeney, and M. Peterson. Notice of
nonparticipation filed by Patrick B. Gilmore, Atkinson,
Conway & Gagnon, Anchorage, for Appellees B. Durrell and
Durrell Law Group, PC. Notice of nonparticipation filed by
Gary A. Zipkin and Michael S. McLaughlin, Guess & Rudd
P.C., Anchorage, for Appellee Wells Fargo Alaska Trust Co.,
N.A. No appearance by Appellee Rodney L. Johnston Trust.
Before: Stowers, Chief Justice, Winfree, Bolger, and Carney,
Justices. [Maassen, Justice, not participating.]
BOLGER, Justice.
I. INTRODUCTION
Deborah Ivy is a shareholder in Calais Company, Inc., a closely held
corporation. Ivy sued Calais in 2007 seeking dissolution of the company. The parties
settled, and Calais agreed to buy out Ivy’s shares of the company based on a valuation of
Calais conducted by a three-member appraisal panel. The appraisers returned an initial
valuation in 2009. The superior court approved that valuation, but Calais appealed. We
reversed and remanded, concluding that the appraisers had failed to understand their
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contractually assigned duty. The appraisal panel returned a second valuation in
October 2014, which the superior court again approved. Ivy now appeals, arguing (1) that
on remand the superior court improperly instructed the appraisers; (2) that the appraisers
made substantive errors in their valuation; and (3) that she is entitled to post-judgment
interest. For the reasons explained below, we affirm the appraisal panel’s valuation of
Calais, but we reverse the superior court’s denial of Ivy’s request for post-judgment
interest.
II. FACTS AND PROCEEDINGS
A. Prior Proceedings In Calais Co. v. Ivy
As this court summarized in Calais Co. v. Ivy,1 Ivy filed suit against Calais
in 2007 seeking involuntary dissolution of the corporation under AS 10.06.628. Calais
owns several tracts of land in Anchorage and does business in real estate acquisition,
development, rental, and leasing. The parties reached a settlement agreement (the
Agreement) in 2009 in which Ivy agreed to dismiss all her claims and Calais agreed to
purchase Ivy’s shares of the company’s stock based on a valuation of the company by a
three-member appraisal panel. The Agreement required the appraisers to calculate the
“fair value under AS 10.06.630(a).” That statute provides that “[t]he fair value shall be
determined on the basis of the liquidation value, taking into account the possibility of sale
of the entire business as a going concern in liquidation.”2 After the panel was assembled,
two of the appraisers determined that the “fair market value” of Calais was $92.5 million.
The third appraiser wrote a letter to the superior court stating that he believed that the
majority’s methodology failed to comply with the Agreement. He argued that the
majority had determined the “fair market value” of Calais’s real estate holdings and not,
1
303 P.3d 410, 411-14 (Alaska 2013).
2
AS 10.06.630(a).
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in his view, the “fair value” of the corporation as required by the Agreement.
Specifically, he objected to the majority’s failure to account for any applicable capital
gains taxes and liquidation costs. The superior court upheld the majority’s valuation, and
Calais appealed to this court.
We first determined that the terms of the Agreement authorized the superior
court to review the appraisers’ decision in order to ensure that the appraisers complied
with the contractual terms of the Agreement.3 We distinguished this from second-
guessing the valuation reached by the appraisers, which was expressly prohibited by the
Agreement.4 We then interpreted “fair value” as used in the Agreement to mean not the
“fair market value” of the company’s assets (as the majority appraisers assumed), but the
“liquidation value” of the company, as that term is used in AS 10.06.630(a).5 We
explained that the “liquidation value” included deductions for any applicable capital gains
taxes and liquidation costs, and we reversed the superior court’s decision because the
majority appraisers had failed to take those taxes and costs into consideration.6
B. Proceedings On Remand
On remand the superior court instructed the appraisers to calculate the fair
value of Calais in accordance with our opinion and to submit a report stating that value
and describing their reasoning. The panel members then completed their appraisal and
issued a report. The report explained that the appraisers summed up the individual
property values of Calais’s real estate holdings to arrive at a “cumulative Market Value”
of $87,580,000. The report then explained how the appraisers subtracted liquidation costs
3
Calais, 303 P.3d at 414-17.
4
Id. at 415.
5
Id. at 418-20.
6
Id. at 419-20.
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and capital gains taxes and accounted for Calais’s other assets and liabilities to reach a
final “fair value” of $54 million.
Ivy moved the superior court to reject the panel’s determination of fair
value. Ivy’s motion focused primarily on the fact that the appraisers had calculated the
value of Calais based on a piecemeal sale of the company’s assets, rather than on a sale
of the entire company as a going concern. She contended that the value of Calais in a sale
of the entire company as a going concern would have resulted in a much higher “fair
value” for the company, and that the appraisers were therefore required to take this
approach because they were required to choose the valuation method that achieved the
“maximum return.” Ivy also asserted various other errors in the appraisers’ valuations.
The superior court rejected Ivy’s arguments and accepted the appraisers’
report. Ivy moved for reconsideration, largely repeating the arguments she had already
made and also requesting post-judgment interest. The superior court denied
reconsideration and also denied her request for interest.
Ivy now appeals, arguing that (1) the superior court improperly instructed
the appraisers on remand; (2) the appraisers made substantive errors in their valuation;
and (3) she is entitled to post-judgment interest.
III. DISCUSSION
A. The Appraisal Panel Was Properly Instructed.
In Calais we remanded to the superior court to remand to the appraisal panel
with “explicit instructions to calculate ‘fair value’ as defined by AS 10.06.630(a), the
other terms of the Agreement, and this opinion.”7 Ivy argues that the superior court failed
to comply with this mandate. We review de novo whether the superior court correctly
7
Id. at 420.
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applied our mandate on remand.8 For the reasons we are about to explain, Ivy’s argument
is without merit.
We remanded in Calais so that the superior court could correct the majority
appraisers’ erroneous belief that “fair value” was synonymous with “fair market value.”
The superior court did exactly that on remand, instructing the appraisers that “ ‘fair value’
is not synonymous with ‘fair market value’ ” and that “[t]he ‘fair market value’ of
Calais’s assets is just one factor to be considered in determining the ‘fair value’ of
Calais.” The superior court’s instructions also quoted AS 10.06.630(a), providing that
“[t]he fair value shall be determined on the basis of the liquidation value, taking into
account the possibility of sale of the entire business as a going concern in a liquidation.”
Ivy, however, makes much of our requirement that the superior court issue
“explicit instructions.” According to Ivy, this language meant that the superior court was
required not only to instruct the appraisers to “calculate ‘fair value’ as defined by
AS 10.06.630(a), the other terms of the Agreement, and [our] opinion [in Calais],” but
also to provide detailed instructions on how to make this calculation, including, for
example, “allow[ing] expert input from the parties regarding the precise manner in which
to take into account capital gains taxes and costs of liquidation.”9 Most notably, Ivy
argues that the superior court should have instructed the appraisal panel that “[s]ince
Calais is a profitable corporation, you are required to determine the ‘fair value’ of Calais
on a going concern basis.” (Emphasis added.)
8
Moeller-Prokosch v. Prokosch, 53 P.3d 152, 154 (Alaska 2002) (quoting
Williams v. Crawford, 47 P.3d 1077, 1079 (Alaska 2002)).
9
Ivy also asks us to instruct the superior court to take over the appraisal
process on remand. Because we uphold the panel’s appraisal, we need not consider that
request.
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The detailed instructions requested by Ivy, however, would have violated
the Agreement’s requirement that “the appraisers . . . exercise their expertise and
judgment in their determination [of the fair value of Calais] . . . without input or
communication from [the parties].” Furthermore, Ivy’s proposed instruction requiring
the appraisers to calculate the fair value of Calais as a going concern would have been
plainly inappropriate. As we noted in Calais, the Agreement specifically refers “to fair
value under AS 10.06.630(a).”10 That statute provides that “[t]he fair value shall be
determined on the basis of the liquidation value, taking into account the possibility of sale
of the entire business as a going concern in a liquidation.”11 As a California court
interpreting similar language has concluded, “liquidation value” means either the
“valuation of the corporation as a going concern in liquidation or the piecemeal valuation
of the company’s assets and liabilities as of the valuation date.”12 The Agreement did not
specify which of these two valuation options the appraisers should use, and it therefore
placed the task of choosing between these two options within the “expertise and
judgment” of the appraisers. In other words, the Agreement required the appraisers to
consider the possibility of a going concern sale, and then, if they concluded that such a
sale was possible, to determine which of the two valuation options — a sale of the
company as a going concern or a piecemeal valuation of the company’s assets — would
return a higher value. Ivy’s proposed instruction would have made these determinations
by judicial decree because it would have required the appraisers to use a going concern
valuation as the basis for their “fair value” determination. That instruction was properly
rejected by the superior court.
10
Calais, 303 P.3d at 419.
11
AS 10.06.630(a) (emphasis added).
12
Trahan v. Trahan, 120 Cal. Rptr. 2d 814, 822 (Cal. App. 2002).
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B. Ivy Has Not Shown Any Error In The Appraisal.
Ivy also challenges the appraisal panel’s determination of the fair value of
Calais. She argues that the appraisers failed to consider a sale of Calais as a going
concern, that the appraisers’ report was inadequately detailed, and that the appraisers
made various other errors in valuing the company’s assets and liabilities. For the reasons
explained below, we reject Ivy’s arguments.
1. Ivy has not shown that the appraisers failed to “tak[e] into
account the possibility of sale of the entire business as a going
concern.”
As we have already discussed, the Agreement required the appraisers to
determine the “fair value” of Calais “on the basis of the liquidation value, taking into
account the possibility of sale of the entire business as a going concern.”13 Ivy argues that
the appraisers failed to even consider the possibility of a sale of Calais as a going
concern, that this failure demonstrates “a lack of understanding or completion of the
contractually assigned task,”14 and that this court should therefore set aside the panel’s
valuation.15
13
AS 10.06.630(a) (emphasis added).
14
Calais, 303 P.3d at 416-17 (quoting Farmers Auto. Ins. Ass’n v. Union Pac.
Ry. Co., 768 N.W.2d 596, 607 (Wis. 2009)).
15
In this appeal, Ivy ostensibly asks us to reverse the appraisers’ award
because the appraisers failed to understand or comply with the terms of the Agreement.
This would raise a mixed question of fact and law: it requires us to determine (1) how
the appraisers reached their valuation (a factual question) and (2) whether that process
shows “a lack of understanding or completion of the contractually assigned task” (a legal
question). But as we are about to explain, Ivy is actually asking us to determine whether
the appraisers accurately valued Calais. We review de novo whether the Agreement
permits judicial review of the accuracy of the appraisers’ award. Id. at 414.
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Ivy’s argument rests on a factual assertion: that the appraisers did not, in
fact, “tak[e] into account the possibility of a sale of the entire business as a going
concern” during their deliberations. But rather than support this assertion with any direct
evidence of the appraisers’ process, Ivy asks this court to make an inference. She argues
that the appraisers were required to choose the valuation method — either a piecemeal
sale of assets or a sale of the company as a going concern — that returned the highest fair
value for the company. And according to Ivy, the value of Calais in a going concern sale
is much more than the $54 million valuation reached by the appraisers.16 Therefore, Ivy
reasons, the appraisers must have failed to consider the possibility of a going concern sale
during their deliberations.
As we explained in Calais, however, “[t]he court’s role [under the
Agreement] is not to determine whether the third party [appraisers] accurately valued the
item . . . but whether the [appraisers] understood and carried out the contractually
assigned task.”17 Ivy’s argument ignores that distinction. She asks us to decide that the
appraisers must have failed to “carr[y] out the contractually assigned task” because they
reached (according to Ivy) an inaccurate valuation. To address this argument would
require us to substitute our judgment for the judgment of the expert appraisers in order
16
Ivy provides a number of reasons why she believes a going concern
valuation would have resulted in a higher “fair value” for Calais, including lower taxes
and transaction costs, efficiency advantages, and development opportunities. Most
importantly, Ivy argues that a sale of the company as a going concern would not have
subjected Calais to any corporate capital gains taxes. We note that while Calais may not
be required to pay capital gains taxes on its properties in a sale of the company as a going
concern, the United States Tax Court has held that the existence of built-in capital gains
taxes on the company’s real estate holdings would reduce the price that a hypothetical
willing buyer would pay for the company. See Davis v. Comm’r, 110 T.C. 530, 550
(1998).
17
Calais, 303 P.3d at 416 (quoting Farmers Auto Ins., 768 N.W.2d at 607).
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“to determine whether the third party [appraisers] accurately valued” Calais. We reaffirm
our prior holding that the court’s role under the Agreement is not to determine whether
the appraisers accurately valued the company, but only whether they understood and
completed the contractually assigned task.18
We are careful, however, to limit our holding by noting that although
apparent inaccuracies generally do not provide a direct basis for rejecting an appraisal
panel’s valuation, they may entitle a party to discovery into the appraisal process. As the
Wisconsin Supreme Court has noted, review of an appraisal award is “usually,” but not
“always,” limited “to the face of the award.”19 This means that although mere
“[u]nhappiness with the amount of an appraisal award is not enough to set it aside,” the
amount of an award may be so facially suspicious that “fraud, bad faith, material mistake,
or a lack of understanding of the process are reasonably implicated.”20 In such cases, “it
is within [the superior court’s] discretion to allow further inquiry or discovery” into the
appraisers’ process.21 We do not address whether further discovery would have been
appropriate in this case because Ivy has not raised any discovery issues on appeal.
2. The appraisers’ report was adequately detailed.
Ivy next argues that the appraisers’ report failed to comply with the
18
Though it is not necessary for our decision, we also note that letters from
one of the appraisers show that the appraisers did consider the possibility of a going
concern sale in the first appraisal and simply concluded that a piecemeal sale of assets
would result in a higher fair value. This does not definitively prove that the appraisers
considered the possibility of a going concern sale while conducting their second appraisal,
but it does show that the appraisers were aware of this obligation.
19
Farmers Auto Ins., 768 N.W.2d at 607 & n.17.
20
Id. at 607-08.
21
Id. at 608.
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instructions issued by the superior court. The superior court’s instructions required that
the appraisers “describe the reasoning behind the conclusion as to ‘fair value’ ” and
“describe how the panel calculated the ‘fair market value’ of Calais’s assets and the
calculation and treatment of capital gains tax liabilities and other liquidation expenses.”
The superior court found that the appraisal panel’s report complied with these
instructions. Because the superior court was in the best position to determine the meaning
of the instructions it issued, we review its determination that the panel complied with
those instructions for abuse of discretion.22
We conclude that the superior court did not abuse its discretion in
determining that the report issued by the appraisal panel complied with the court’s
instructions to “describe the reasoning behind the conclusion as to ‘fair value.’ ” The
report explained that each appraiser separately determined the fair market value of each
of Calais’s properties, the estimated marketing costs and capital gains tax liability, and
the value of Calais’s other assets and liabilities. The report then described how the
appraisers combined their independent appraisals to reach a fair value of $54 million. We
do not think anything else was required by the superior court’s instruction to “describe
the reasoning behind the conclusion as to ‘fair value.’ ” We also note that nothing else
was required by the Agreement itself, which only specified that “[u]pon completion of
the appraisal process, the appraiser(s) shall be directed to prepare and deliver . . . a final
report stating the appraised value of the fair value of Calais under the criteria set out in
[the Agreement].”
22
Cf. del Rosario v. Clare, 378 P.3d 380, 383-84 (Alaska 2016) (holding that
this court reviews a superior court’s interpretation of its own order for abuse of discretion
because “the court that entered the original order is in the best position to interpret its own
order”).
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3. Ivy did not preserve her other challenges to the panel’s
valuation.
Ivy makes a number of other challenges to the panel’s valuation, but most
of those arguments were either not raised at all below,23 or else were raised only after Ivy
filed her motion for reconsideration.24 An argument is ordinarily not preserved for appeal
if it was not raised below,25 or if it was only raised after the party filed a motion for
reconsideration.26 We therefore conclude that Ivy failed to preserve a number of her
arguments for appeal, and we do not address them here.
Ivy did raise one claim of error briefly below: that the appraisers erred in
failing to account for Calais’s tax basis in its real estate properties when they calculated
the “effective tax rate.” But Ivy’s initial motion papers objecting to the appraisers’
valuation totaled more than 50 pages, and she only raised the tax basis issue in a single
cursory sentence. She included no citations to the record or to any relevant legal
authority. To preserve an issue for appeal, the party must have “raised the issue below”27
23
Specifically, Ivy’s arguments that the panel was not permitted to determine
the market value for each piece of property by averaging the two closest appraisals of that
property; that the appraisers used a “distress” sale valuation of Calais’s real properties;
and that the appraisers “capitulated” to one appraiser’s view on capital gains taxes.
24
Specifically, Ivy’s arguments that the appraisers valued only 39 of Calais’s
41 properties and that the appraisers inaccurately calculated Calais’s cash assets.
25
Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985).
26
Wells v. Barile, 358 P.3d 583, 589 n.17 (Alaska 2015) (“[A]rguments raised
for the first time on reconsideration are waived.”). We review de novo whether an
argument was preserved. Mitchell v. Mitchell, 370 P.3d 1070, 1076 (Alaska 2016)
(quoting State v. Jacob, 214 P.3d 353, 361 (Alaska 2009)).
27
Stadnicky v. Southpark Terrace Homeowner’s Ass’n, Inc., 939 P.2d 403, 405
(Alaska 1997).
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and specified her grounds for doing so.28 This preservation rule serves “important judicial
policies: ensuring that there is ‘a ruling by the trial court that may be reviewed on appeal,
. . . afford[ing] the trial court the opportunity to correct an alleged error,’ and creating a
sufficient factual record so ‘that appellate courts do not decide issues of law in a factual
vacuum.’ ”29 Here, we conclude that Ivy’s single sentence, lacking any factual support
or legal authority, was insufficient to preserve her argument on appeal.30 We need not
address that argument further.
C. Ivy Is Entitled To Post-Judgment Interest.
Ivy’s final argument on appeal is that the superior court erroneously denied
28
Williams v. State, 629 P.2d 54, 62 (Alaska 1981). See also Alaska R. Civ.
P. 77(b)(2) (requiring that motions include “a brief, complete written statement of the
reasons in support of the motion, which shall include a memorandum of the points and
authorities upon which the moving party will rely”).
29
Johnson v. State, 328 P.3d 77, 82 (Alaska 2014) (alteration in original) (first
quoting Alexander v. State, 611 P.2d 469, 478 (Alaska 1980); then quoting Pierce v.
State, 261 P.3d 428, 433 (Alaska App. 2011)).
30
We acknowledge that this preservation rule is not absolute. Rather, we may
consider new arguments on appeal if they either establish plain error or (1) do not
“depend on new or controverted facts”; (2) are “closely related to the appellant’s
arguments at trial”; and (3) could “have been gleaned from the pleadings.” Krossa v. All
Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001) (quoting Arnett v. Baskous,
856 P.2d 790, 791 n.1 (Alaska 1993)). None of Ivy’s unpreserved arguments establishes
plain error or satisfies these three factors. In particular, we note that Ivy’s argument as
to the tax basis turns on a controverted fact: whether the appraisers did or did not take
Calais’s tax basis into account in determining the “fair value” of Calais. We also doubt
that the tax basis argument is “closely related” to her other arguments below, or that it
could have been “gleaned from the pleadings,” because Ivy admitted in her pleadings that
any error in failing to account for the tax basis was “largely irrelevant” in light of her
underlying argument that there should have been no deduction for capital gains taxes.
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her post-judgment interest.31 Ivy received a “final judgment” in a July 6, 2010, order
issued by the superior court. We reversed that order in Calais.32 Calais concedes that Ivy
would have been entitled to post-judgment interest from the July 2010 order to the date
of payment if this court had affirmed the original valuation by the appraisal panel. But
Calais apparently believes that the July 2010 judgment is no longer the correct judgment
from which to calculate post-judgment interest after our reversal in Calais. We find
Calais’s argument unpersuasive, and we therefore conclude that Ivy should be awarded
post-judgment interest in this case. We do, however, agree with Calais on one important
point: Ivy’s post-judgment interest award should be reduced by any dividends Ivy has
received on her shares in Calais since the July 2010 judgment.
1. Alaska Appellate Rule 509 applies here.
Alaska Appellate Rule 509 provides the test for determining if post-
judgment interest is calculated from an original judgment that is modified or reversed on
appeal, or if it is instead calculated from the date of the new judgment. Rule 509 states
that “[i]f in a civil case a judgment is modified or reversed with directions that a judgment
for money be issued by the trial court, interest on the new judgment . . . shall be payable
from the effective date of the prior judgment which was modified or reversed.”33 Since
31
When Ivy first raised the issue below, she asked for “interest” from “January
2010, to [the] date of final payment of her shares,” but did not specify whether this was
pre- or post-judgment interest. On appeal Ivy has narrowed that request, asking only for
interest from July 6, 2010, to the date of final payment, but referring to it specifically as
“post-judgment interest.” We conclude that Ivy’s original request for “interest” from
January 2010 to the final date of payment was sufficient to preserve her argument on
appeal that she is entitled to post-judgment interest from July 2010 to the final date of
payment.
32
Calais Co. v. Ivy, 303 P.3d 410, 420 (Alaska 2013).
33
Alaska R. App. P. 509 (emphasis added).
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it is clear that our result in Calais was a reversal, the question is simply whether our
directions on remand were “directions that a judgment for money be issued by the trial
court.”34
We conclude that they were. We have previously addressed this question
in two other cases. In Brotherton v. Brotherton we found that a remand for “a
clarification of the findings with regard to [a piece of] property, and any necessary
adjustments to the distribution resulting from these issues” amounted to a reversal “with
directions that a judgment for money be issued by the trial court” withing the meaning
of Rule 509.35 We reached the same conclusion in Reust v. Alaska Petroleum
Contractors, Inc.36 when considering a remand “for reduction of . . . lost wages awards
. . . , for application of the punitive damages cap . . . , and for review of the recalculated
punitive damages award for excessiveness.”37
Notably, we concluded that our remands in Brotherton and Reust fell within
the scope of Rule 509 even though they required the superior court to conduct further fact
finding or legal analysis. In Brotherton the superior court on remand was required to
make new factual findings as to whether a piece of property was marital or premarital
34
We review a superior court’s interpretation of the Alaska Appellate Rules
de novo. Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026
(Alaska 2009).
35
Brotherton v. Brotherton (Brotherton II), 142 P.3d 1187, 1192 (Alaska
2006) (quoting Brotherton v. Brotherton (Brotherton I), 941 P.2d 1241, 1248 (Alaska
1997)).
36
Reust v. Alaska Petroleum Contractors, Inc. (Reust II), 206 P.3d 437, 441
(Alaska 2009) (applying Rule 509 to remand in Reust v. Alaska Petroleum Contractors,
Inc. (Reust I), 127 P.3d 807 (Alaska 2005)).
37
Reust I, 127 P.3d at 826.
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property.38 In Reust the superior court was required to examine whether the new punitive
damages award was “excessive.”39
In this case, we reversed the superior court’s final order and remanded “to
the superior court to remand to the panel with instructions to calculate the fair value of
Calais as defined by AS 10.06.630(a), other terms of the Agreement, and this opinion.”40
We acknowledge it was the appraisers, and not the superior court, who conducted
additional fact-finding and analysis on remand, but we see no substantive distinction, at
least for the sake of determining the application of Rule 509, between a remand for
further fact-finding by the superior court and a remand for a new valuation by an
appraisal panel. Because we conclude that our remand in Calais constituted a reversal
with “directions that a judgment for money be issued by the trial court” under Rule 509,
we also conclude that Ivy is entitled to post-judgment interest on the July 2010 order.
2. Awarding Ivy post-judgment interest does not do an injustice to
Calais, but the award should be lowered by the amount of
dividends Ivy has received on her Calais shares since her final
judgment.
In addition to arguing that Appellate Rule 509 does not apply to this case,
Calais argues that Ivy should be denied post-judgment interest on three alternative
grounds. We will deny post-judgment interest “only when such an award would do an
injustice.”41 For the reasons we are about to explain, we find Calais’s first two arguments
unpersuasive, but we agree with Calais that the dividends Ivy has received on her shares
38
Brotherton II, 142 P.3d at 1188.
39
Reust II, 206 P.3d at 438.
40
Calais Co. v. Ivy, 303 P.3d 410, 420 (Alaska 2013).
41
Farnsworth v. Steiner, 638 P.2d 181, 184-85 (Alaska 1981).
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in Calais since her final judgment should be subtracted from her post-judgment interest
award.
Calais’s first argument is that Ivy is not entitled to any interest because she
was not entitled to receive any money until the panel returned an appraisal that complied
with the Agreement. At first glance, this argument appears compelling. As we have
previously stated, “[t]he real question in awarding interest . . . is whether the debtor has
had use of money for a period of time when the creditor was actually entitled to it.”42
Under the Agreement Calais was only required to pay Ivy for her shares “following
receipt of the appraisal report described in Paragraph 5.” Paragraph 5 of the Agreement
required the appraisers “to determine the fair value of Calais in accordance with this
Settlement Agreement and AS 10.06.630(a).” As we explained in Calais, the first
appraisal by the panel did not determine the “fair value” of Calais in accordance with
AS 10.06.630(a), because it did not account for capital gains taxes and liquidation costs.43
Calais can thus reasonably assert that Ivy was not entitled to any money until the date of
the second appraisal (October 31, 2014), because the appraisers did not return an
appraisal “described in Paragraph 5” of the Agreement until that time.
But “[w]e interpret settlement agreements as contracts,”44 and “[t]he
objective of contract interpretation is to determine and enforce the reasonable
expectations of the parties.”45 The expectation of the parties was that Ivy would be paid
42
Id. at 184.
43
Calais, 303 P.3d at 420.
44
Id. at 414 (citing Chilkoot Lumber Co. v. Rainbow Glacier Seafoods, Inc.,
252 P.3d 1011, 1014 (Alaska 2011)).
45
Id. at 418 (quoting Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004
(Alaska 2004)).
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well within a year of the superior court’s approval of the Agreement. The Agreement
provided that the three appraisers would be selected or appointed within 45 days of the
execution of the Agreement. The appraisers were then to appraise the fair value of Calais
“as promptly as is practicable,” and the parties agreed “not to nominate any appraiser who
cannot commit to complete the work required by this Agreement within [120] days
following their appointment or selection.” Calais was then required to pay Ivy within
60 days of receiving the panel’s report. In total, the parties expected that Calais would
pay Ivy within 225 days of the execution of the Agreement — i.e. by January 7, 2010.
The parties did not expect six more years of litigation to resolve this dispute. Given these
facts, we cannot say that awarding Ivy post-judgment interest beginning in July 2010
would do an injustice.
Calais next argues that Ivy is not entitled to post-judgment interest because
Calais’s delay in payment was Ivy’s fault — specifically, because Ivy has refused to sign
a letter authorizing the sale of Ivy’s shares while this appeal has been pending. But
Alaska “view[s] interest on damage awards to be a form of compensation for the period
that the plaintiff remains ‘less than whole,’ ” and we therefore “do not consider
responsibility for a delay of payment as a factor in making an interest award.”46 As we
have explained, “[f]or us to rule otherwise would amount to awarding [the appellee
debtor] the free use of [the appellant creditor’s] money and also impose a ‘chilling effect’
upon a judgment creditor’s right to appeal an award he feels is not entirely adequate.”47
Finally, Calais argues that an award of interest would be unfair because Ivy
has received dividends from her shares in Calais throughout this litigation. According to
an affidavit filed by Calais’s counsel, Ivy has received dividends totaling $447,500 since
46
Farnsworth, 638 P.2d at 185.
47
Id.
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she placed her shares in escrow. (This affidavit appears to be the only evidence of such
payments, but Ivy has not disputed this fact on appeal.) If Ivy has, in fact, received any
dividends since her July 2010 final judgment, we agree that it would be unfair for her to
also receive the full amount of post-judgment interest. The purpose of interest is
“compensation for the period that the plaintiff remains ‘less than whole.’ ”48 Making Ivy
whole means contemplating the position she would be in if Calais had purchased her
shares in July 2010. But if Calais had purchased Ivy’s shares in July 2010, Ivy would
have stopped receiving dividends. Thus, making Ivy whole only requires awarding her
the difference between the post-judgment interest and the dividends she has actually
received since July 2010.
IV. CONCLUSION
For the reasons explained above, we AFFIRM the superior court’s
enforcement of the settlement agreement but REVERSE the superior court’s denial of
post-judgment interest. We REMAND for calculation of post-judgment interest minus
the dividends Ivy has received.
48
Id.
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