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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martin v. Coastal Villages Region Fund (04/27/2007) sp-6120

Martin v. Coastal Villages Region Fund (04/27/2007) sp-6120, 156 P3d 1121

     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,

MARGARET MARTIN, ) Supreme Court No. S- 11999
Appellants, ) Superior Court No. 3AN-03-10973 CI
v. ) O P I N I O N
COASTAL VILLAGES REGION ) No. 6120 - April 27, 2007
Appellees. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,  Sharon   L.
          Gleason, Judge.

          Appearances: Douglas K. Mertz and William  F.
          Cummings, Juneau, for Appellants.  Michael N.
          White,  Friedman,  Rubin & White,  Bremerton,
          Washington,  for  Appellee  Coastal  Villages
          Region Fund.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.
          BRYNER, Chief Justice.
          This   appeal  revolves  around  competing  legal   and
equitable  claims  asserted by the Coastal Villages  Region  Fund
(CVRF)  and  the  Martins to a fund of money deposited  with  the
superior court in Anchorage.  The funds were originally  held  by
Trident  Seafoods,  and derived from sales of halibut  caught  by
Bruce  Lewis.    The  Martins and CVRF  asserted  separate  legal
claims  against  Lewis in the superior court  the Martins  filing
their  case  in  Juneau, and CVRF proceeding in Anchorage.   Both
parties  eventually  recovered default judgments  against  Lewis.
Meanwhile,  the Trident money had been deposited for  safekeeping
with  the  court in Anchorage.  Relying on their Juneau judgment,
the  Martins sought to claim the deposited funds.  The  court  in
Anchorage  awarded  the funds to CVRF instead,  ruling  that  the
Martins  claim was barred because it depended on Lewiss right  to
the  funds,  which  Lewis  had lost by defaulting  to  CVRF.   We
reverse.   Because the rights both parties assert  to  the  funds
depend  on equitable claims arising from Lewiss original interest
in  the Trident money, we conclude that the parties dispute  must
be determined by the relative equities of their competing claims,
not  by  Lewiss willingness to concede his lack of legal interest
in  the funds.  Since the equitable claims remain unresolved,  we
remand for further proceedings.
          The   Coastal  Villages  Region  Fund  is  a  community
development  quota (CDQ) non-profit corporation.  Each  year  the
United  States and Alaska governments allocate to CVRF a quantity
of  halibut  to  be  harvested.  Fishing for  halibut  under  the
program  is  limited to residents of the villages CVRF represents
and the villages themselves.1
          James Hanson attempted to obtain a card permitting  him
to  fish from CVRFs allocation of CDQ halibut, but was told  that
he  did  not qualify because he did not live in a CVRF community.
He  nevertheless persisted in his efforts and eventually  managed
to  obtain  a  permit.  Hanson then entered into a contract  with
Bruce  Lewis,  a Juneau fisher, which stated that  Hanson  was  a
qualified CDQ license holder.  Under the contract, Lewis  was  to
fish under Hansons CVRF CDQ allocation.  A certain percentage  of
each  landing  was  to  go to an IFQ [Individual  Fishing  Quota]
Broker  and  a certain percentage to the CDQ Group.   Hanson  was
listed as the CDQ Group Representative and as a Card Holder.
          James  Al  Martin  and Margaret Martin  are  commercial
fishers  living  in  Juneau.  In March  2003  they  leased  their
fishing vessel, the F/V Middle Pass, and its equipment to  Lewis.
Under  the lease contract Lewis was to use the boat and he  would
pay  the Martins twenty-five percent of gross landings during the
charter  period.   Lewis was also responsible for  the  costs  of
operating  the vessel and for returning the vessel on August  15,
2003 in good condition and with the fuel tanks full.
          Lewis  proceeded  to  harvest  significant  amounts  of
halibut  under the Hanson contract using the Martins  vessel  and
equipment.   On  August  3,  2003, Lewis delivered  approximately
45,000 pounds of halibut to Trident Seafoods Corporation, a  fish
processor.  Around August 16, 2003, Lewis delivered an additional
47,810 pounds of halibut to Trident.
          During this time period, Lewis took the vessel into the
Bering Sea, failed to maintain contact with the Martins, and  did
not  send payments required under the lease.  The Martins located
Lewis and extended the lease until September 20, 2003.  But Lewis
still  did  not  return  the vessel as planned  and  the  Martins
threatened  Lewis with arrest.  On October 7, 2003,  the  Martins
received  a call from the owner of a dock facility at  Auke  Bay,
north  of downtown Juneau, telling them that the F/V Middle  Pass
          was located at the docks.  The Martins went to the facility and
found  the  vessel  and crew, but Lewis had  already  left.   The
vessel was damaged: rotten fish in the hold had not been cleaned;
equipment was broken; gear and equipment were missing; it had run
out of fuel and was inoperable due to engine damage.  The Martins
arranged  to  have the vessel towed to their Juneau  dock  space.
They  cleaned and repaired the vessel at their own cost, but they
missed  part  of  the  black cod season and  their  crabbing  was
limited  because  the vessels poor condition made  it  unsafe  to
travel to more distant waters.  According to the findings of fact
and  conclusions of law entered by the Juneau superior court, the
only  proceeds the Martins received from landings made  by  Lewis
were  $4,623 in a single payment made directly to the  bank  that
held a lien on the boat.
          Meanwhile,  after learning that the halibut  allocation
had  been  issued  to  Hanson based on his  misrepresentation  of
residency  within  a  CVRF community, CVRF sought  an  injunction
against  Trident Seafoods to have funds from the halibut landings
held  until  the rightful owner of the money could be determined.
There  is  no indication that Hanson, Lewis, or the Martins  were
notified of the motion for preliminary injunction or the  lawsuit
initiated by CVRF against Trident Seafoods.
          On  September 2, 2003, the superior court in  Anchorage
granted  CVRFs  preliminary injunction  and  ordered  funds  from
Trident  Seafoods  to  be  deposited with  the  court  until  the
rightful  owner  could  be determined.  Pursuant  to  the  order,
Trident  sent  a  check  to the clerk of court  for  $110,174.13,
representing payment for the August 16, 2003 delivery of  halibut
by  Lewis  to  Trident.  In October 2003 CVRF  dismissed  Trident
Seafoods as a defendant and substituted Hanson and Lewis.  In its
amended  complaint before the Anchorage court, CVRF claimed  that
Hanson  had fraudulently obtained access to a CVRF CDQ allocation
and  then  entered into an agreement with Lewis to fish  for  the
halibut.  CVRF claimed that Lewis knew or should have known  that
Hanson was not authorized to harvest the halibut.  CVRF sought  a
judgment   against  Hanson  and  Lewis  in  an  amount  exceeding
          In  November  2003 the Martins filed a separate  action
against Lewis in the superior court at Juneau.  They alleged that
Lewis  failed  to  pay them under the terms  of  the  boat  lease
agreement, damaged the vessel, and failed to return the vessel on
time.   Their complaint expressly alleged their right to  recover
from the funds held on deposit in Anchorage.
          CVRF  moved  to  intervene in the Juneau  case  of  the
Martins  against  Lewis and have it dismissed so  that  the  case
could  be  decided  in  the ongoing Anchorage  proceedings.   The
Juneau  court denied CVRFs motion to intervene and dismiss.   The
Juneau court characterized the Martins claim against Lewis  as  a
contract  dispute  between  owners of  a  boat  and  the  charter
operator of the boat.  The court noted:
          [This] court makes no ruling as to whether it
          can,  should  or  will enter  an  order  with
          respect to funds held by the Anchorage court.
          Unquestionably plaintiffs are  only  entitled
          to  a  portion of that money if the defendant
          in  this case is entitled to a portion of it.
          Probably,  too, CVRF is only  entitled  to  a
          portion  of  that money if the  defendant  in
          this case is not entitled to a portion of it.
          The    lawsuits   should   determine    those
          entitlements and the proper disposal  of  the
          funds held by the court.
          On  March  10, 2004, because Lewis had not appeared  in
CVRFs  Anchorage  case,  the Anchorage court  entered  a  default
against him.  Lewis also failed to appear in the Juneau case.  In
Juneau, the Martins testified and offered exhibits in support  of
their  claim, including requests for admission that  were  deemed
admitted after Lewis failed to make a timely response.
          The  Juneau  court  issued its  findings  of  fact  and
conclusions  of  law  on  July 20, 2004.   It  found  that  Lewis
violated  his contract and was liable for damages to the Martins.
The  court set out the damages by category including lost fishing
opportunities  due to the late return, failure  to  pay  for  the
lease,  damage  to  the vessel, third-party charges  against  the
vessel,  and  missing equipment and gear for a total judgment  of
$135,431.13  in  favor  of the Martins.   Regarding  the  Trident
Seafood  funds,  the  Juneau court noted  that  proceeds  from  a
halibut  landing  had  been  placed  into  an  account  with  the
Anchorage  court, that the amounts due to the Martins  under  the
vessel  charter in this case were earned by them in the  contract
resulting in the landings that paid the money that is now in  the
registry of the court in Anchorage, and that the amount  owed  to
the Martins was substantially overdue.  But the court stated that
it  makes no decision as to how the money in the registry of  the
court in Anchorage shall be distributed.
          The  Martins  moved to have the funds in the  Anchorage
court released to them based on the Juneau judgment.  The Martins
argued  that [t]hey possess the sole judgment against  the  funds
and  could  have executed against the funds while  they  were  in
Tridents  hands  or Lewiss hands, had this court not  intervened.
And  that [t]he funds would not even exist except for the Martins
providing their vessel for the fishing effort.  The Martins cited
the  contract between Hanson and Lewis, in which the  CDQ  permit
holder  would  be  entitled to fifty percent of the  landings  at
best.   They  also  argued that a permit  holder  would  only  be
entitled  to  net after the cost of the boat hire  and  the  boat
          On October 11, 2004, while the Martins motion was still
pending,  Lewis  sent  to the Anchorage court  a  Demand  for  an
Opportunity  to  Resolve  this Matter Outside  of  Court.   Lewis
demanded  that  the court allow him and CVRF the  opportunity  to
resolve  this  matter in private and that if  CVRF  persisted  in
using  the  court system he would file criminal  charges  of  tax
fraud against it.  Lewis further demanded a trial by jury if  the
case remained in court.
          On  October  19, 2004, the Anchorage court  denied  the
Martins  motion  to  release funds because it  appears  that  the
Martins  claim  to  the funds on deposit in this  case  would  be
derivative  of any claim of Mr. Lewis to the funds;  default  had
been  entered  against Lewis on March 10, 2004; the Martins  were
not  parties to the CVRF v. Hanson and Lewis case; and  they  had
not moved to intervene.
          The  Martins  then moved to intervene in the  case  but
stated  that they have no factual claim to pursue in the upcoming
trial  in  this matter and do not intend to participate  in  that
trial; they have already had a trial of their own claim and  have
received  a  judgment.  The Martins argued  that  their  existing
judgment  entitled them to priority because without  this  courts
action  of  ordering the funds seized, the Martins would  already
have been able to satisfy their judgment out of it.
          The  Anchorage  court  granted the  Martins  motion  to
intervene.  In December 2004 the Anchorage court addressed Lewiss
Demand  for  an  Opportunity to Resolve this  Matter  Outside  of
Court,  noting  that default had previously been entered  against
Lewis  and  that  Lewis  was required to first  obtain  an  order
setting  aside  default  before  he  could  participate  in   the
          Trial  was rescheduled for January 31, February 1,  and
February 2, 2005. On January 18 the Martins filed their complaint
against  CVRF  in the Anchorage court, again noting  their  final
judgment  against Lewis and seeking a declaratory  judgment  that
they  have priority to satisfy their judgment out of the  Trident
funds.   The  Martins also alleged abuse of process because  CVRF
obtained  the  preliminary injunction against the  Trident  funds
without notifying them.
          On  January 27 CVRF and Hanson reached a settlement  in
which  CVRF  stipulated to the dismissal of  all  claims  against
Hanson.  Also on January 27 the Martins gave the Anchorage  court
notice  that  they  had filed another suit in Juneau   this  time
against  CVRF and Hanson to contest their claim that  a  judgment
from  [the  Anchorage] court entitles them to priority  over  the
Martins,  who  already have a judgment that they have  sought  to
execute  against  those  funds, as well as  claims  of  abuse  of
          On  January 31 the Anchorage court issued a judgment in
favor  of CVRF.  On February 2 CVRF filed a motion in the  Juneau
court to dismiss the Martins claims of abuse of process, as  well
as  a  motion  to dismiss for improper venue or alternatively  to
change  venue.  In Anchorage, CVRF filed a motion to  consolidate
the Martins new Juneau case with the ongoing case in Anchorage.
          On February 15, in Anchorage, CVRF moved for release of
the  funds  held  by the Anchorage court.  Also on   February  15
Lewis submitted a notice and demand letter to CVRF with a copy to
the   Anchorage   court.   Stating  that  he   had   been   given
permission/standing by his crew, Lewis demanded a  settlement  of
the matter.
          On  February 22 CVRF gave notice in the Anchorage court
of  scheduled depositions of the Martins.  The Martins  sought  a
protective   order  before  the  Juneau  court  to  prevent   the
continuing campaign of harassment against the Martins by CVRF and
to  find  that  the  Martins  were  not  required  to  submit  to
depositions.   In  March  2005  CVRF  withdrew  its  request  for
depositions  because  the  Martins had promised  to  provide  the
contract requested by CVRF.
          In late February 2005 the Anchorage court granted CVRFs
motion  to consolidate the Juneau case; the Anchorage court  also
stated that any further proceedings would be before it.
          On   April  7  the  Anchorage  court  addressed  Lewiss
February  notice  and  demand.  The Anchorage  court  noted  that
[l]etters  are an inappropriate format for communication  to  the
court  and  that  accordingly it would not take any  action  with
respect to Lewiss letter.
          On  June  6  the Juneau court granted CVRFs  motion  to
dismiss  the Martins abuse of process claims.  That same day  the
Anchorage  court  ordered a release of the funds  to  CVRF  after
[h]aving  considered the arguments of all parties, the  extensive
briefing, and oral arguments.  Of the total $110,174.13  held  by
the court, $90,174.13 was sent to CVRF, while $20,000 was sent to
Hanson under a settlement with CVRF.
          On  September  1 the Juneau court granted CVRFs  motion
for summary judgment in the Juneau case, noting that the case had
been consolidated into the Anchorage proceedings.
          CVRF  moved  for enhanced attorneys fees and  costs  in
Anchorage  under  Civil  Rule 82(b)(3) because,  it  argued,  the
Juneau  litigation was simply a frivolous attempt by the  Martins
to  obtain  a hometown advantage and there could be no reasonable
argument  that  the declaratory judgment action filed  in  Juneau
served any purpose other than to drive up everyones costs  or  to
simply forum shop.
          On  October  19, 2005, the Anchorage court  issued  its
final  judgment  in  favor  of CVRF.  The  Anchorage  court  also
granted  CVRFs motion for enhanced attorneys fees because pursuit
of  the  second Juneau case was unreasonable given  this  pending
court proceeding, and resulted in unnecessary legal expenses.
          The Martins appeal the Anchorage decision.
          The  Martins make four major arguments on appeal:  that
the  preliminary  injunction  in favor  of  CVRF  was  improperly
granted;  that  the  Anchorage court erred in not  enforcing  the
Juneau  judgment against CVRF; that the Anchorage court erred  in
giving the entirety of the seized Trident Seafood funds to  CVRF;
and  that  the Anchorage court erred in granting CVRF an enhanced
fee award.
     A.   The Preliminary Injunction
          The Martins first argue that the court erred in seizing
funds  to  which the Martins had an obvious claim in an ex  parte
hearing  without notifying the Martins so they could  participate
in   the   hearing.   We  review  the  issuance  of   preliminary
injunctions  for abuse of discretion and will find  an  abuse  of
discretion  only  when  we  are left with  a  definite  and  firm
conviction,  after  reviewing the whole record,  that  the  trial
court erred in its ruling.2
          CVRF  initially filed its lawsuit only against  Trident
Seafoods  and  obtained an injunction against it; CVRF  does  not
contest  that  no notice was given to the Martins.   CVRF  argues
          that it was only seeking to ensure the funds were not taken in
order to preserve the status quo and that it had notified Trident
as the holder of the funds.
          A preliminary injunction requires that a defendant have
an  opportunity  to be heard; here, there is an issue  whether  a
defendant  or an adverse party includes the Martins.3  But  while
CVRF  could  have realized that the Martins might be  an  adverse
party  over the distribution of the funds, and though preliminary
injunctions are generally harsh remedies, their purpose is not to
immediately initiate a full trial on ownership.  The purpose of a
preliminary injunction is to maintain the status quo.4  There  is
no  indication  that CVRF was doing anything but  preserving  the
funds pending a final judgment, even though CVRF might have known
that  there  would be other potential claimants.  The preliminary
injunction fulfilled its purpose  to hold the funds until  claims
against them could be filed and determined.
          And  it is not obvious that the Martins were harmed  by
the  injunction.  The Martins argue that it is not controvertible
that  the  Martins  would have received  their  earnings  if  the
Anchorage  court  had  not seized the funds just  before  Trident
mailed  the check made out to the Martins.  But CVRF argues  that
the  funds  would  not have automatically gone  to  the  Martins.
While a Trident Seafoods bookkeeping record states that the funds
were  held in an account for the Martins and checks were  payable
to  the Martins, according to deposition testimony of an employee
of  Trident  Seafoods this was merely plugged into a spreadsheet;
it  did  not mean that the Martins would have automatically  been
paid.   Because the Martins chose not to argue any factual issues
in Anchorage, this issue was left unresolved.
          For  these  reasons,  we  do  not  find  an  abuse   of
discretion   in  the  trial  courts  issuance  of  a  preliminary
     B.   The Effect of the Juneau Judgment in Anchorage
          The  Martins main argument is that because their Juneau
judgment  was  obtained  first, before  the  Anchorage  case  was
resolved, they had priority to the funds held by the court.   The
Martins  argue that the Anchorage court was required to implement
the  Juneau judgment against the funds in Anchorage under a  full
faith and credit theory.
            The  Martins  claim that the Juneau court  found  the
funds  held by the court in Anchorage were earned by the  Martins
and  that  [the  Juneau  court] clearly expected  [the  Anchorage
court]  to  respect  this finding and release those  funds,  even
without [the court] ordering it.
          But   the   Martins  overstate  the  Juneau   judgment.
Although the Juneau court ruled that the Anchorage funds could be
traced to the Martins contract with Lewis,  it expressly declined
to decide on the disposition of those funds:
               The court finds that the amounts due  to
          the  Martins under the vessel charter in this
          case  were  earned by them  in  the  contract
          resulting in the landings that paid the money
          that  is now in the registry of the court  in
          Anchorage.   The amount owed is substantially
               overdue.  The court makes no decision as to
          how the money in the registry of the court in
          Anchorage shall be distributed.
(Emphasis added.)
          The Juneau court found that the Martins were owed money
under  the contract and that money from the contract was  in  the
court  registry  in Anchorage.  But this says nothing  about  the
priority  of  the Martins claim to the funds in  light  of  other
claims  against  them.   Because of this, there was  no  relevant
judgment  to give full faith and credit to, and it is  irrelevant
that the Juneau judgment was issued first.5  The Martins argument
that  they should have priority to the funds as a matter  of  law
based solely on the Juneau judgment is without merit.
     C.    Equitable Principles
          The  Martins also argue that the trial court  neglected
its  duty to apply equitable principles in determining rights  to
the  funds.   They note that there are five classes of  potential
claimants  to the funds held at Trident Seafoods: the Martins  as
lessor;  Lewis; Hanson and CVRF as permit claimants; the crew  of
the  F/V  Middle Pass; and judgment holders  namely the  Martins.
And each class may assert equitable claims against the money that
was  seized under the preliminary injunction.  But the key  issue
is  which  potential  equitable claimants actually  attempted  to
enforce  their  rights.   Hanson  settled  the  case  and   Lewis
defaulted; Lewis also claimed to be acting on behalf of the crew,
but  he provided no support and no crew members have sued.6  Thus
the only two relevant parties here are the Martins and CVRF.
          CVRF argues that the Martins abandoned any arguments on
equitable  distribution before the superior court and on  appeal.
CVRF  cites  the  Martins  opposition to  its  motion  to  compel
discovery in which the Martins resisted CVRFs demands to  produce
information  on  the relationship between the Martins  and  Bruce
Lewis  and  correspondence between them  and  exhibits  from  the
Juneau case.  The Martins reply stated that [their] participation
in  this litigation is solely to enforce an existing judgment and
that  [t]he  sole  question before the  court  is  whether  their
judgment can be enforced against the funds.  CVRF argues that  by
resisting discovery and limiting the claim to one solely  through
the  Juneau judgment, the Martins abandoned any potential  equity
claim.   In  addition, CVRF argues that the Martins waived  their
arguments  by not raising any equitable claims in the  points  on
appeal, even if they later raised them in their appeal brief.7
          The  Martins  argue that they raised  equity  arguments
throughout   the  process  and  that  their  points   on   appeal
essentially  cover the equitable concern.  With  respect  to  the
points  on appeal, the Martins are correct in the general  sense;
they  mention fairness and the funds to which the appellants were
entitled   an  umbrella phrase suggesting equitable issues.   And
though  the  Martins claims were primarily based  on  the  Juneau
judgment,  the Martins clearly raised equity concerns below.   In
their  memorandum  in support of their motion to  release  funds,
they argued that CVRF would be unjustly enriched by taking all of
the  fishing profits excluding the cost of providing the boat and
          gear.  The Martins motion to preserve funds argued an unjust
enrichment   claim,  contending  that  [w]ithout  [the   Martins]
providing  the  boat  and gear, there  would  be  no  funds.   In
opposing  CVRFs  motion for release of funds, the  Martins  again
argued  that it would be unjust enrichment for CVRF to  take  the
entirety of the funds.
          During  the  oral  proceedings before  the  court,  the
Martins counsel made several equity arguments, including that  we
all  know  that in fact Lewis caught the fish and hired the  crew
that  caught the fish.  In other words, Lewis did, more  directly
than  anyone  else, generate the funds here, and  we  know  Lewis
earned  the  money  using the Martins boat and  gear.   In  other
words,  both the Martins and Lewis earned it, had . . .  in  some
sense a very real direct entitlement to it.  The Martins attorney
also argued that there are multiple lenses through which the case
could  be  viewed, including one of equity-based  claims  to  the
          The  Anchorage court agreed with CVRF that the  Martins
did  not maintain an equity claim.  At trial Superior Court Judge
Sharon  L.  Gleason stated I guess my sense is that the  position
that  the  Martins,  as Ive understood it,  have  taken  in  this
litigation  has  been  that their rights to these  monies  derive
solely  from  the  fact  that Mr. Lewis had   that  they  have  a
judgment  against Mr. Lewis, and Mr. Lewis is  a  party  to  this
action.   The Anchorage court ruled that the Martins claims  were
derivative of Lewiss, and that because Lewis had no claim to  the
funds, there was no basis for the Martins to recover.
          From  the  transcript of the oral argument  it  appears
that there was miscommunication between the Martins attorney  and
Judge  Gleason.  The Martins did resist discovery and  sought  to
have  a  judgment based on the existing record  alone.   But  the
Martins  resistance to CVRFs discovery request  simply  reflected
their  reluctance  to intervene formally in  CVRFs  legal  action
against  Lewis.  The Martins had already won a judgment on  their
own claim against Lewis in Juneau, and they understandably wanted
to  avoid  a  formal  intervention that  CVRF  might  use  as  an
opportunity to collaterally challenge their Juneau judgment.
          The  superior  court viewed the Martins  reluctance  to
intervene  as precluding them from establishing a superior  legal
right  to  the  funds claimed by CVRF.  But as already  mentioned
above, the Martins were not merely asserting their legal right to
collect  their  judgment from the Anchorage funds; instead,  they
separately  asserted  an equitable right to the  specific  funds,
claiming that they had earned those funds and that CVRF would  be
unjustly enriched by an award of the funds.  Moreover, as we have
also  discussed above, the Anchorage funds had been seized by  an
ex  parte  injunction, which simply had the effect of  preserving
the  status  quo  to  allow the ownership  of  the  funds  to  be
determined.   Although  the funds had been seized  in  connection
with the pending Anchorage case, CVRFs seizure of the funds by ex
parte injunction  rather than by execution or some other form  of
levy  gave it no right or priority over other potential creditors
of Lewis who might seek to recover against the seized funds.
          Nor   did  CVRF  assert  a  direct  claim  against  the
Anchorage  funds  in its action.  It pursued its  superior  court
case  as  an action seeking damages for fraud against  Lewis  and
Hanson,  not  as  an  action against the  deposited  funds.   The
complaint  did  assert  an  interest in  the  specific  funds  by
alleging  that  they  could  be traced  to  the  fraud  allegedly
committed by Hanson and Lewis; but this claim was advanced  on  a
constructive  trust  theory   an equitable  claim  deriving  from
Lewiss original interest in the funds.
          Thus,  once CVRF established its legal claim by default
against Lewis, its judgment gave it a legal right to recover from
Lewis and an equitable claim against the Anchorage funds.  From a
procedural standpoint, CVRFs position was indistinguishable  from
the  Martins: both parties were judgment creditors of  Lewis  who
sought  to  assert  competing  equitable  claims  to  the   funds
deposited  in  Anchorage.   As matters currently  stand,  neither
party  has established any basis for claiming priority  to  those
funds as a matter of law.
          In  dismissing  the Martins claim on  the  ground  that
their rights to these monies derive solely from the fact that . .
.  they  had  a  judgment against Mr. Lewis, the  superior  court
apparently  overlooked both the assertion by the  Martins  of  an
equitable claim to the particular funds held by the court and the
equitable nature of CVRFs competing claim to those funds.
          CVRF insists on appeal that the Martins abandoned their
equitable claim by failing to argue it before the superior court.
But  our review of the record discloses no unequivocal waiver  of
the  Martins unjust enrichment claims.  The equitable claims were
set  out  in  the  Martins  pleadings,  and  the  transcript   of
proceedings  before  the superior court  reveals  no  express  or
implied abandonment of the claims.  CVRF did not characterize its
discovery  request  as addressing the Martins  unjust  enrichment
claim, did not assert that their failure to provide the discovery
precluded  a ruling on that issue, or advance any other  specific
argument addressing the Martins unjust enrichment theory  or  its
own constructive trust theory for claiming the seized funds.
          In  their  briefs on appeal, both CVRF and the  Martins
attempt  to argue the merits of their competing equitable claims.
The  Martins  urge us to decide the issue without a remand.   But
the  facts  on record are insufficient for this court to  make  a
determination.   And it is the role of the trial court,  and  not
this  court,  to  judge the credibility of any witnesses  and  to
weigh conflicting evidence.8  Further proceedings are required to
address the Martins unjust enrichment claims and to determine the
extent  of  their  equitable rights to  the  Anchorage  funds  in
relation to the equitable rights claimed by CVRF.
          We must therefore remand the case to the superior court
for  additional proceedings to resolve these issues after  giving
both  parties  an opportunity to obtain appropriate discovery  to
support  their  positions.  The superior  court  should  also  on
remand  require the parties to give notice of the proceedings  to
the  crew  members so that any claims they have against the  fund
for their crew share can be adjudicated.
     D.   Other Issues
          Because of the remand, other arguments raised are moot,
          including the issue of an enhanced fee award.
          For the reasons set out above, we REVERSE and REMAND to
allow  the  trial court to determine the merits  of  the  parties
equitable claims.
     1     These  villages include: Scammon Bay,  Chevak,  Hooper
Bay,  Newtok,  Napakiak, Oscarville, Napaskiak, Eek, Tuntutuliak,
Kongiganak,  Quinhagak,  Goodnews  Bay,  Platinum,  Kwigillingok,
Kipnuk, Chefornak, Nightmute, Tununak, Toksook Bay, and Mekoryuk.

     2     City of Kenai v. Friends of Recreation Ctr., Inc., 129
P.3d 452, 455 (Alaska 2006).

     3     Alaska  Rule of Civil Procedure 65(a)(1)  states  that
[n]o preliminary injunction shall be issued without notice to the
adverse party.  The Alaska rule is equivalent to Federal Rule  of
Civil Procedure 65(a).

     4     United States v. Guess, 390 F. Supp. 2d 979, 984 (S.D.
Cal.  2005)  (A preliminary injunction is a device for preserving
the  status  quo  and preventing the irreparable loss  of  rights
before  judgment.  )  (citing Sierra  On-Line,  Inc.  v.  Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)).

     5     The fact that CVRF was not allowed to intervene in the
Juneau  case also highlights that the Juneau case was limited  as
between  the  Martins and Lewis.  The Juneau court  characterized
the  claim  of  the  Martins against Lewis as a contract  dispute
between owners of a boat and the charter operator of the boat.

     6    The Martins argue that Lewis attempted to avoid default
and  should have been given the benefit of the doubt.   But  even
absent standing and waiver issues, there is nothing in the record
to  indicate that the court abused its discretion in refusing  to
take  action on Lewiss two submissions.  Both were filed at least
seven  months after default had been entered and the  second  was
filed after judgment had been entered in the Juneau case; neither
specifically  sought to set aside default or  the  judgment;  and
neither asserted any valid defenses.  In his second letter  Lewis
claimed  to  have been given permission/standing to  sue  by  the
other  crew members and/or to settle this matter on their behalf,
but he provided no support for this contention and his letter was
rejected as an inappropriate means of addressing the court.

     7     Citing Murat v. F/V Shelikof Straight, 793 P.2d 69, 74
n.12 (Alaska 1990).

     8    Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005).

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