Friday, November 10, 2017

Seven Of Eight Badges Of Fraud

The Alaska Supreme Court resolved (with a limited remand) a lengthy battle between a law firm and its Native corporation client.

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. 

The fee issue

 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.” Leisnoi was therefore “entitled to recover the balance that it paid after the writ of execution was unlawfully issued.”

After that setback and given the opportunity to prove quantum meruit, the law firm's actions were rebuked

This transfer of assets, the [lower] 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 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.

The underlying representation involved title to land on Kodiak Island. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/11/the-alaska-supreme-court-an-attorney-represented-a-native-corporation-in-litigation-nearly-three-decades-ago-the-corporatio.html

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