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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Lifetime Drivers License Suspension Upheld for Killing Cyclist

Drivers License Suspension
Mountain Biking in Anchorage Alaska Rocks.

In May 2005 an intoxicated Eugene Bottcher drove his vehicle off the road, hitting a boy and narrowly missing the boy’s brother. The boy who had been hit later  died at the hospital from his injuries. After Bottcher hit the boy, he continued to drive, and when stopped by a passerby who had witnessed the accident, Bottcher tried to bribe him into not reporting the crime.

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Business Succession Planning for Contingent Fees

Business succession planning for contingent fees is important. The fight between your family and your former partners can be avoided. The example in the case below should motivate you to employ estate planning ideas in your partnership agreement.  Alternatively, a buy sell agreement funded by insurance could have helped.    It could have saved a lot of time and attorneys fees at the end.

THE SUPREME COURT OF THE STATE OF ALASKA

Supreme Court No. S-14060 Superior Court No. 3KN-04-00052 PR OPINION No. 6779 – May 3, 2013

SUZANNE C. DIMEFF and THE OLETA COWAN TRUST, Appellants,
ESTATE OF ROBERT MERLE COWAN and DALE DOLIFKA, PERSONAL REPRESENTATIVE OF THE ESTATE OF ROBERT COWAN, Appellees.

On March 24, 1989, the oil tanker EXXON VALDEZ ran aground on Bligh Reef in Prince William Sound, spilling 11 million gallons of crude oil. Litigation followed — in what became known as the Exxon Valdez Oil Spill (EVOS) Litigation, over 50 law firms and 30,000 plaintiffs appeared before the United States District Court for the District of Alaska.
Several years later, compensatory damages were calculated at $507.5 million and punitive damages at $2.5 billion. Continue reading “Business Succession Planning for Contingent Fees”

Company Lawyer Updates

The Alaska Court System reported that there were no new opinions issued in Alaska, for any topics including those affecting companies or lawyers.  The following is their complete report.

 

Alaska Appellate Opinions for the week ending April 19, 2013

Supreme Court Opinions  — No opinions issued./span>

Supreme Court MOJsNo MOJs issued.–

Court of Appeals Opinions — No opinions issued./span>

Court of Appeals MOJs – No MOJs issued./span>

I was going to post a picture of the Alaska Supreme Court building.  But, I haven’t taken any pictures of it.   I also could not find any pictures of it in the public domain.  So, I substituted the Ellis County Texas courthouse instead.  The gothic architecture, turrets, lookout towers and stone exterior are impressive.

Company Lawyer Updates

Local and Federal Taxes

Williams v. Ketchikan Gateway Borough, Alaska Sup. Ct. S14513 (Feb. 15, 2013). (Holding your personal residence is not exempt from local taxation simply because you built your home with federal grant money.) Was the grant money taxable income in the year received? Are the forgiveness provisions of the repayment terms taxable forgiveness of indebtedness income? If not, should they be?