Chilkoot Charlies Headed to Trial on Alcohol Server Case

Today the Alaska Supreme Court in a three to two decision, sent Chilkoot Charlies to trial on an Alcohol Server wrongful death claim.  The Alaska statute only imposes liability on bars and servers of alcohol if they serve alcohol to someone who is visibly drunk.  The plaintiff did not offer testimony that the person was intoxicated when they Chilkoot Charlies served the alcohol. Instead, the plaintiff offered circumstantial evidence about the drinkers condition before and after leaving Chilkoot Charlies, and how much they had drunk at Chilkoot Charlies.  The Alaska Supreme Court stated circumstantial evidence was sufficient to allow the Plaintiff’s to present their case to a jury.

No. 6805 S-13899 Kalenka v. Jadon [other civil]

Clayton Walker, JD

Force used in Self Defense must be Proportional to the Threat

Santoyo v. State of Alaska

 

Force used in Self Defense must be Proportional to the Threat

On June 25, 2010, the defendant, Andrea Santoyo, and Jessica Fratis became involved in an argument. Apparently, during this argument, Santoyo flipped a cigarette at Fratis. (The cigarette did not hit her, but went by her head.) Fratis became angry and started hitting Santoyo. As the fight continued, Santoyo pulled out a knife and stabbed Fratis several times. Miguel Slats intervened in the fight and received a cut on his side that was five inches long, as well as a one-inch cut to his left arm.

Bystanders called 911, and Santoyo fled the area. But she was apprehended by the police a few blocks away. Fratis was taken to the hospital where she received emergency surgery. She was in the hospital for approximately six weeks recovering from her wounds. Slats was hospitalized for four or five days for his wounds.

The State charged Santoyo with one count of assault in the first degree for assaulting Jessica Fratis and one count of assault in the first degree for assaulting Miguel Slats. In a jury trial, Santoyo argued that she had acted in self-defense. The jury rejected Santoyo’s self-defense argument, convicting her of both counts of assault in the first degree.

At sentencing, Santoyo proposed the mitigating factor that, in committing the offense, she had “acted with serious provocation from the victim.” In order to establish a mitigating factor, the defendant must prove the mitigating factor to the court by clear and convincing evidence. In order to prove the serious-provocation mitigating factor, the defendant must show provocation “sufficient to excite an intense passion in a reasonable person in the defendant’s situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be … .”  In addition, the defendant’s response must be proportional to the provocation. Whether the response is proportional “involves a common sense balancing of the seriousness of the defendant’s crime against the seriousness of the provocation.”

In rejecting the mitigating factor, the superior court concluded that Santoyo’s conduct of inflicting serious physical injury with a knife was disproportionate to any provocation that she had received.  The Alaska Supreme Court affirmed.

 

Clayton Walker, JD

907-375-9226

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If you don’t take care of details the first time — it may cost you more later.

Schaub v. Schaub

If you don’t take care of details the first time — it may cost you more later.

A couple divorced in 1992. The divorce decree did not divide the parties’ property. The man now receives military retirement benefits from over 22 years of service in the United States military. In October 2010 the woman filed a motion seeking a post­.  The man opposed, arguing that the woman’s claim was barred by (1) the statute of limitations; (2) laches; and (3) estoppel. The superior court concluded that the woman could properly bring her motion, that her motion was not barred by the statute of limitations, and that laches barred only the retrospective division of the man’s retirement benefits. The man appealed. The court affirmed the decision on the merits, although it remanded on other issues.  If you don’t get the Alaska court to issue a property decree when you divorce your spouse can return decades later and ask for more.

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Statutes of Limitations in Alaska

Petro Alaska v. Davis Wright Tremaine

Corporation’s shareholders brought a derivative suit against a shareholder-director and the corporation’s former attorneys for fiduciary fraud, fraudulent conveyance, legal malpractice, and civil conspiracy. After an evidentiary hearing, the superior court ruled all the claims were time-barred. The Alaska Supreme Court affirmed the dismissal of all claims accept two claims against the law firms.  Thirty five pages of information on statutes of limitations, tolling, discovery rule, and the distinction between attorney fee awards as damages versus costs.

Statutes of Limitations in Alaska

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Alaska License Revocation Hearings

CLAYTON WALKER, JD

JULY 20, 2013

 

Patrick

v.

Municipality of Anchorage,

Anchorage Transportation Commission

ALASKA SUPREME COURT

S-14360

No. 1464 – July 19, 2013

 

The Alaska Supreme Court issued another decision concerning Alaska administrative board process of revoking chauffeur’s licenses. The case doesn’t break new ground. However, it stands as a reminder

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NO ATV ACCESS on Butterfly Lake Trail

CLAYTON WALKER, JD

Original Opinion JULY 20, 2013

Rehearing October 10, 2011

 

SOP, INC.

v.

STATE OF ALASKA,

DEPARTMENT OF NATURAL RESOURCES

DIVISION OF PARKS AND OUTDOOR RECREATION

Supreme Court No. S-14541

OPINION No. 6800 – July 19, 2013

No. 6835 – October 11, 2013

The Alaska Supreme Court revoked Nancy Lakes area homeowner’s motorized ground based access to their properties along ATV trails by invalidating their special use permits as unlawfully issued easements.

20130724-064622.jpg

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Equitable Division of Marital Assets in Alaska

By: Clayton Walker, JD
There are three basic steps in the equitable division of marital assets in Alaska: (1) identifying the property available for distribution, (2) determining property value, and (3) dividing property equitably.  See Doyle v. Doyle, 815 P.2d 366, 368 (Alaska 1991) (citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

The first step, identifying the property available for distribution involves determining which property is a marital asset or separate asset.  Yesterday, the Alaska Supreme Court revisited the first step of the process.  Continue reading “Equitable Division of Marital Assets in Alaska”

Hidden Trustee Fees

Trustee Fees
Hidden Trustee Fees: Sometimes the big fees aren’t on the color brochure. They may be buried in the expense report generated by related enterprises.

On Friday, June 7, 2013, the Alaska Supreme Court issued an opinion in favor of a trust advisory committee that had sued Wells Fargo Bank, NA. The reversed the trial court’s failure to either award the trust committee attorneys fees or adequately explain why there were not entitled to fees.

The trust advisory committee spent four years seeking property insurance premium and coverage information from the trustee. The committee then sought a  superior court order to get the documents they were entitled to and for an attorney’s fees award under Alaska Civil Rule 82. The superior court granted approximately half of the committee’s information and document requests and compelled the trustee to provide copies of the insurance policy.  The trial court then ruled that neither party clearly prevailed and denied the committee’s attorney’s fees request. The committee appealed, arguing that the superior court misinterpreted Rule 82 and abused its discretion by not determining that the committee was the prevailing party entitled to a fee award.  The Supreme Court reversed.

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Alaska Supreme Court Orders Closer Look at Offer of Judgment

By:  Clayton Walker, JD

 

 DEARLOVE

v.

CAMPBELL

OPINION No. 6785

May 31, 2013

Offer of Judgment In Alaska
Ice Biking the Turnagain Arm, Anchorage, Alaska

 

A driver caused injury to the passenger of another car in a two-car accident. The passenger brought suit for damages, including her insurer’s subrogated claim for medical expenses. State Farm Insured both the driver and passenger. The driver made an early offer of judgment, which the passenger did not accept. State Farm then made a direct payment to itself reducing the  amount from the passenger’s potential recovery. The driver then made a second offer of judgment, which the passenger did not accept. After trial both parties claimed prevailing party status; the driver sought attorney’s fees under Alaska Civil Rule 68.

The superior court ruled that the Driver’s first offer of judgment did earnRule 68 fees, but the second offer did. Both parties appealed, arguing the superior court improperly considered the State Farm Insurance’s  payment in its Rule 68 rulings. The Alaska Supreme Court concluded that the trial court must take into account State Farm’s payment to itself had when evaluating the offers of judgment.

The Supreme Court found the record unclear on the nature of State Farm’s.  The Alaska Supreme Court vacated the decision that the second offer of judgment entitled the driver to Rule 68 fees and remanded for further proceedings on this issue. Hopefully a closer look at the effect of State Farm’s treatment of its insureds results in a fair outcome for their policy holders.

 

 

 

Appraisal Valuation Clauses

In 2007, Deborah Kyzer Ivy, a shareholder of Calais Company, Inc. (Calais), filed a complaint against Calais seeking involuntary corporate dissolution. In May 2009, Ivy and Calais reached a settlement agreement (Agreement) with appraisal valuation clauses.  The clause provided that Calais agreed to purchase Ivy’s shares at “fair value” as determined by a three-member panel of appraisers. The appraisers disagreed over the fair value of Calais. Two of the appraisers agreed the fair value of Calais was $92.5 million; one appraiser dissented, valuing Calais at $43 million.

Calais sought to avoid the high valuation by  arguing the two majority appraisers had failed to comply with the appraisal procedure mandated by the Agreement and the Agreement’s definition of “fair value.” The superior court ultimately declined to rule on the issue, concluding that interpreting the term “fair value” was beyond its scope of authority under the terms of the Agreement. Consequently, the court ordered Calais to purchase Ivy’s shares based on the majority appraisers’ high valuation.

Calais appealed. The Alaska Supreme Court reversed the superior court’s final order and remanded for the court to remand to the appraisers with explicit instructions to calculate the “fair value” of Calais as defined by AS 10.06.630(a), as required by the Agreement.

Appraisal Valuation Clause
Calais Building.

With $50 million at stake, you can buy a lot of argument in six years.  Ivy sought a valuation in 2007 before the market meltdown and at the peak of the market.  Ivy is probably lucky she didn’t get stuck selling at the bottom of the market.

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