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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wagner v. Wagner (10/16/2009) sp-6421

Wagner v. Wagner (10/16/2009) sp-6421, 218 P3d 669

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

RICHARD WAGNER, )
) Supreme Court No. S- 13055
Appellant, )
) Superior Court No. 4FA-03-00181 CI
v. )
)
GREGORY WAGNER, ) O P I N I O N
)
Appellee. ) No. 6421 October 16, 2009
)
)
RICHARD WAGNER, )
) Supreme Court No. S- 13175
Appellant, )
) Superior Court No. 4FA-03-00181 CI
v. )
)
GREGORY WAGNER, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial District, Mark I. Wood, Judge.

          Appearances: S. Jason Crawford, Crawford  Law
          Offices, LLC, Fairbanks, for Appellant.  John
          J.  Connors,  Law Office of John J.  Connors,
          P.C., Fairbanks, for Appellee.

          Before:   Fabe,   Chief  Justice,   Eastaugh,
          Carpeneti, and Christen, Justices.  [Winfree,
          Justice, not participating.]

          FABE, Chief Justice.
I.   INTRODUCTION
          In  exchange for his son Gregory Wagners help obtaining
a  loan,  Richard Wagner, who had previously filed for bankruptcy
and  had many creditors, agreed to give Gregory a portion of  the
royalty  proceeds  from  his oil lease  holdings.   When  Richard
failed to honor this agreement, Gregory sued and in 2005 obtained
a  judgment for specific performance providing that he  would  be
entitled  to  a share of Richards royalties for as  long  as  the
subject  oil wells continued producing.  In two separate appeals,
Richard  contests the superior courts continuing  enforcement  of
this  judgment.  Because Richards arguments in both  appeals  are
either  untimely,  procedurally barred  challenges  to  the  2005
judgment  or otherwise lack merit, we affirm the superior  courts
decisions in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          This  is not the first time Richard and Gregory  Wagner
have  been  before us.1  We described the basic facts  underlying
their dispute in a recently published opinion:
               Richard  Wagner filed for bankruptcy  in
          1988. Richards assets included royalties from
          oil  and  gas  leases he possessed.  Richards
          creditors  included  Key Bank,  whom  Richard
          owed  $2.5  million.   The  bankruptcy  court
          issued  Richards  final  bankruptcy  plan  in
          1994.  The plan divided Richards oil and  gas
          lease royalties among his creditors.  In 2001
          Key  Bank  offered  to settle  Richards  $2.5
          million  debt for $1 million if Richard  paid
          by  December 31, 2001.  Richard was unable to
          raise  the money; he therefore asked his  son
          Gregory Wagner to help him get a loan.
          
               Gregory  agreed to co-sign a  $1,025,000
          loan   from   Northrim  Bank  with   Richard.
          Gregory  and  his wife put up their  home  as
          collateral and put their personal  credit  at
          risk.   In exchange for Gregorys co-signature
          on the loan, Richard and Gregory entered into
          an  oral  agreement, which they later reduced
          to writing.
          
               The   written  agreement  provided  that
          income  from  Richards  royalties  that   had
          secured the Key Bank loan would first pay the
          Northrim loan.  Any remaining royalty  income
          would  be  divided as follows: Gregory  would
          get the first $2,500 per month, Richard would
          get the next $7,500 per month, and they would
          divide  any remaining royalty income  equally
          between  them.  The agreement  did  not  take
               into account the portions of royalty income
          to  be  paid  to  other creditors  under  the
          bankruptcy plan.[2]
          
     B.   Prior Proceedings
          We  described the trial court proceedings that underlie
the current appeals in the same recently published opinion:
               In   2002  Richard  defaulted   in   his
          payments  to  Gregory, and  Gregory  sued  in
          2003.  The case went to trial in August 2005.
          At  the  end of trial, the jury returned  the
          following  answers  to the following  special
          interrogatories:
          
               [Q:]  Prior to the time the Wagners
               signed   the   loan  documents   at
               Northrim Bank on December 24, 2005,
               had   they  entered  into  an  oral
               agreement? [A:] Yes.
               
               [Q:] If yes, what were the terms of
               that  agreement? [A:]  In  exchange
               for  getting a $1,025,000 loan from
               Northrim  bank  to  repay   Richard
               Wagners  debt  at  Key  Bank,  Greg
               Wagner  will  receive  a  share  of
               profits  from Richard  Wagners  oil
               royalties.
               
          The  jury found breach by Richard and awarded
          Gregory past damages of $139,180.39.
          
               In  November  2005  the  superior  court
          concluded  that specific performance  was  an
          appropriate  remedy  and ordered  Gregory  to
          prepare  a judgment for specific performance.
          The   court   held,  contrary   to   Richards
          argument,  that the jurys failure to  specify
          the  terms  of  the  oral agreement  did  not
          prevent  specific  performance.   The   court
          reasoned  that  the jury must have  used  the
          terms  of  the written agreement to calculate
          its award of past damages, and therefore that
          the  jury  must have found the terms  of  the
          oral  agreement consistent with the terms  of
          the written agreement.  The court wrote:
          
               Applying   the   formula   of   the
               [written] agreement mechanically to
               the  testimony of . . . [a witness]
               and  the other evidence of the  oil
               revenues  from Richards  shares  of
               his oil leases introduced at trial,
               the    past   damages   would    be
               calculated at $141,124.00.  That is
               within  $2000.00 of what  the  jury
               actually   awarded   [$139,180.39].
               The  jury did not receive a lot  of
               help  from  counsel in  calculating
               past  damages  and their  award  to
               Greg     is    within    reasonable
               mathematical    error    if    they
               performed  the  calculations  under
               the  agreement themselves.  .  .  .
               The   difference  could   also   be
               explained     by     the      jurys
               determination   that   there   were
               insufficient royalties to meet  the
               complete payout of the agreement on
               one or more months.
               
               The  trial  court said  it  would  order
          Richard  to  pay  Gregory  according  to  the
          formula in the written agreement.  The  trial
          court  also said it would calculate  Gregorys
          payments  without deducting amounts  owed  to
          creditors other than Northrim Bank, including
          the  Weeks Foundation.  In December 2005  the
          superior  court entered judgment for specific
          performance against Richard.[3]
          
          The superior courts partial final judgment for specific
performance  in  December  2005  provided  that  Richards  future
royalty  income would be received in escrow and then  distributed
to  Gregory, Richards various creditors, and Richard according to
detailed  instructions described in the judgment.   The  superior
court ordered that
          [t]he  allocation  and  distribution  of  the
          [royalty]  income  subject to  this  judgment
          shall continue as long as there is production
          from  the oil and gas wells in which  Richard
          Wagner  holds  royalty interests  subject  to
          this judgment.
          
          As  Gregory notes, because Richard promised to pay Greg
out of funds he had previously promised to . . . other creditors,
the  judgment for specific performance prescribed one formula for
determining  Gregorys  monthly royalty entitlement  (under  which
Richards debts to pre-existing creditors other than Northrim Bank
were not factored in because Richards agreement with Gregory  had
not  taken  them  into  account), and  a  different  formula  for
actually distributing the monthly royalties (under which Richards
pre-existing creditors were paid first because their rights  were
prior  in time to Gregorys).  Gregory describes the result  as  a
monthly  amount  accrued [against Richard] in Gregs  favor  which
could not be paid contemporaneously.
          Richard   appealed  the  2005  judgment  for   specific
performance  in January 2006, and we later described  the  issues
raised in that appeal as follows:
          Richard  challenged a number of the  superior
          courts  conclusions  of  fact  and  law.   He
          generally did not state any legal grounds for
          those  challenges, merely  stating  that  the
          superior  court erred in entering  them.   He
          challenged the superior courts conclusion  of
          law  that [t]he contract between Richard  and
          Greg  is sufficiently clear and definite that
          the  Court  is  able  to enforce  it  without
          having  to  supply essential terms  that  the
          parties did not agree to.  He also challenged
          the   superior  courts  decision   to   order
          specific performance into the future, as well
          as   the  superior  courts  order  that   all
          Richards royalty income be paid directly into
          an escrow account and directly disbursed from
          the  escrow  account,  without  ever  passing
          through Richards control.[4]
          
          We  ultimately dismissed Richards January  2006  appeal
for lack of prosecution.5
          In  April  2006  Gregory appealed the  superior  courts
award  of  attorneys  fees  on  the December  2005  judgment  for
specific  performance, arguing that his fees had been  calculated
improperly.6  We affirmed the fee award.7
          In  March  2007  the superior court issued  a  writ  of
execution  against Richard for arrears owed to Gregory under  the
judgment for specific performance, and Richard appealed from  the
issuance  of that writ in April 2007.8  Richard argued  that  (1)
the  trial court deviated from the jury award when it entered the
2005 judgment for specific performance, (2) the trial court erred
in ordering specific performance rather than a lump sum judgment,
and  (3)  the  trial  court miscalculated the amount  of  arrears
Richard  owed  when it issued its March 2007 writ of  execution.9
We  affirmed  the  superior courts decision to  issue  the  writ,
holding  that  Richards  first  two  arguments  were  time-barred
challenges  to the 2005 specific performance judgment  that  were
covered  by  his  earlier dismissed appeal, and  that  his  third
argument lacked merit.10
     C.   Current Proceedings
          1.   Appeal S-13055
          Upon  Gregorys motion, the superior court  convened  in
January  2008 to determine the arrears Richard owed  Gregory  for
the  year  2007 under the judgment for specific performance.   In
February  2008 Superior Court Judge Mark I. Wood issued an  order
concluding  that  the  arrears for 2007 totaled  $393,688.30  and
confirming  that  Gregory  would be able  to  obtain  a  writ  of
execution in that amount.  Richard now appeals from this February
2008  order, arguing that the order violates Richards Chapter  11
bankruptcy  plan and is inconsistent with the jurys  verdict  and
the judgment for specific performance.
          2.   Appeal S-13175
          In May 2008 Richard filed a motion for return of funds,
requesting  that  the superior court order  Gregory  to  pay  him
$67,779.54  that  he  alleged had been improperly  paid  over  to
Gregory by the clerk of court, who was acting as the escrow agent
          distributing Richards royalty income under the judgment for
specific   performance.  Richard  argued  that  certain   royalty
disbursements that he was owed as assignee of the claims  of  two
of  his bankruptcy creditors should have been paid to him by  the
clerk  of  court  without being intercepted by Gregorys  writ  of
execution  for arrears.  Richard contended that by  paying  those
funds  to Gregory under Gregorys writ of execution, the clerk  of
court violated the judgment for specific performance because that
judgment provided that Richard was to receive those funds.
          Gregory  countered  that there was no  reason  why  the
disbursements  due  Richard  as  assignee  of  those   bankruptcy
creditors  claims would be exempt from Gregorys writ of execution
and  that  Richards motion was untimely because Gregory had  been
executing  on  those disbursements for more than  a  year  before
Richard  objected.  Judge  Wood agreed with  Gregory  and  denied
Richards  motion  in  late  May 2008, noting  that  there  is  no
statutory  or  case law which supports Richard  Wagners  untimely
request for an additional exemption from execution.  Richard  now
appeals from the denial of his motion.
III. STANDARDS OF REVIEW
          We review questions of law de novo[,] questions of fact
for clear error, and awards of specific performance for abuse  of
discretion.11
IV.  DISCUSSION
          To  the  extent  that Richards arguments  substantively
challenge  the 2005 judgment for specific performance,  they  are
untimely  and procedurally barred.  In Wagner II we  declined  to
consider  two out of three of Richards points on appeal for  this
very  reason  they were untimely, procedurally barred  challenges
to  the  2005 judgment for specific performance that Richard  has
long  since  lost  the opportunity to appeal.12   The  thirty-day
deadline  for  appeal of the 2005 judgment passed more  than  two
years before Richard filed current appeals S-13055 and S-13175 in
2008.13  Though execution on the judgment has occurred continually
since  its  entry,  [e]xecution does not give a  party  a  second
chance to appeal the merits more than thirty days after the entry
of final judgment.14  Moreover, as we also noted in Wagner II,  a
party has only one appeal as of right, which Richard used when he
filed  the  2006 appeal (S-12205) that we dismissed for  lack  of
prosecution.15
          Thus,  while  Richard may argue that the  judgment  for
specific   performance  is  being  improperly   or   inaccurately
enforced,  he may not substantively challenge the judgment.   And
if  he wishes to attack the judgment on the basis that it is void
ab  initio  because the trial court was without proper  authority
and  jurisdiction  in  entering it, the proper  vehicle  for  his
argument  would be a Civil Rule 60(b)(4) motion for  relief  from
the  judgment,16  rather than an appeal from the superior  courts
actions  in  enforcing the judgment.  Accordingly, we decline  to
consider  the merits of any of Richards arguments that  challenge
the 2005 judgment for specific performance.
     A.   The  Superior  Court  Did Not Err in  Determining  that
          Richard  Owed  Gregory $393,688.30 in  Arrears  on  the
          Specific Performance Judgment for the Year 2007 (Appeal
          S-13055).
          Richard appeals the superior courts February 2008 order
determining that he owed Gregory $393,688.30 in arrears  for  the
year  2007 under the 2005 judgment for specific performance.   He
argues (1) that the order effectively changed the material  terms
of  the  Chapter  11  [bankruptcy] plan . . .  without  obtaining
permission  from  the  United States  Bankruptcy  Court  for  the
District  of  Alaska, (2) that the jury verdict that  formed  the
basis  for  the  2005 judgment for specific performance  was  not
precise  enough  to  support  that judgment,  and  (3)  that  the
superior  court  used  the wrong formula in calculating  Richards
arrears  by  failing to deduct payments to Richard  Wagners  pre-
existing creditors.
          1.   The  superior  court did not  err  in  failing  to
               obtain  leave or permission to act outside of  the
               Chapter 11 bankruptcy plan.
          Richard asserts that the superior court issued an order
which  effectively changed the material terms of the  Chapter  11
plan  and . . . directed the reallocation of income used for plan
payments  (i.e.,  royalty from oil and gas well  leases)  without
obtaining  permission  from the United  States  Bankruptcy  Court
.  .  .  .   But Richard provides no explanation as  to  how  the
superior  court  effectively changed the material  terms  of  the
bankruptcy plan.
          If  Richard  intends to argue that the superior  courts
February  2008  order impermissibly changed the bankruptcy  plan,
his  argument is waived due to inadequate briefing.17  As Gregory
points out, Richard does not explain or cite any provision of his
Fifth Amended Bankruptcy Plan that is or was in any way offended,
or  impaired  .  .  .  .  Nor does he in any way,  reference  any
specific  bankruptcy  laws that were offended.   And  as  Gregory
further  notes, the Trial Court took great pains not to vary  the
bankruptcy  payment stream to Richards creditors in any  way  and
all of the bankruptcy creditors received the royalty payments due
them,  on  time  and  in accordance with the plan.  (Emphasis  in
original.)
          This  appeal is not the proper context for an  argument
that  the  underlying  2005  judgment  for  specific  performance
impermissibly  changed the bankruptcy plan.  As discussed  above,
the  time  has long since passed for Richard to attack  the  2005
judgment for specific performance on the merits.  And if  Richard
wishes  to challenge it on the basis that it is void because  the
trial  court  was  without proper authority and  jurisdiction  in
entering it, the proper vehicle for his argument would be a Civil
Rule 60(b)(4) motion for relief from the judgment.18
          Accordingly,  we decline to consider Richards  argument
that  the  superior  court erred in failing to  obtain  leave  or
permission to act outside of the Chapter 11 bankruptcy plan.
          2.   The superior court did not err in failing to enter
               an  order  setting forth definite  terms  for  the
               duration and conclusion of specific performance.
          Richard next argues that the jury verdict at trial left
an  ambiguous  term,  without any specific amounts  for  economic
damages, and that the superior court erroneously assumed the role
of fact finder when it ordered specific performance in 2005 based
on  a  formula  to  which the jury made no  reference.   He  also
contends  that  [b]y requiring specific performance indefinitely,
instead  of determining a specific amount for damages, the  trial
court  has  caused  a  manifest injustice to  Richard  Wagner  by
preventing him from knowing what the ramifications of any  future
conveyance of rights might be.
          But these arguments inescapably constitute an untimely,
procedurally  barred challenge to the 2005 judgment for  specific
performance.   Moreover,  they  are  very  similar  to  arguments
Richard  made  in  Wagner II.  In Wagner  II  we  rejected  these
arguments   as  time-barred  and  barred  by  our  dismissal   of
[Richards]   appeal  from  the  2005  judgment  for  failure   to
prosecute.19  We now reject them once again for the same reasons.
          3.   The  superior  court did not  err  in  failing  to
               deduct  payments  to Richard Wagners  pre-existing
               creditors.
          Finally,  Richard  appears to argue that  the  superior
courts  February  2008  order enforcing  the  2005  judgment  was
inconsistent  with that judgment.20  He asserts that  the  Courts
decision  change[s] the formula the Court initially  outlined  in
its  Rule  54(b) Partial Final Judgment and that the decision  to
distribute  funds  using  a  formula which  first  sets  out  the
payments  between  the  parties then credits  payments  to  other
creditors  directly  from Richards share of  the  proceeds[]  was
error.   He complains that payments to his creditor Weeks  should
not have been deducted from his share of the royalty proceeds  in
the  calculations underlying the February 2008 order.  He  argues
that  the  superior court should have first set aside the  monies
payable  under the terms of the Chapter 11 plan, then  calculated
the division of remaining royalty funds between the parties.   He
further asserts that, having settled accounts with several of his
bankruptcy  creditors,  he should be entitled,  as  successor  in
interest  for  [those]  creditors,  to  keep  those  funds   paid
according  to the formula set forth in the bankruptcy  plan,  and
then  divide  the remaining funds according to the  trial  courts
formula adopted in its order on specific performance.
          But this argument, made here in the context of Richards
opposition to the superior courts February 2008 order, is  simply
a  revival of an argument Richard made in Wagner II regarding the
superior courts issuance of Gregorys 2007 writ of execution.   In
Wagner  II  Richard asserted, using some of the same language  he
uses  here, that the superior court erred by declining to  deduct
payments  to  Richard  Wagners pre-existing  creditors  prior  to
determining  Gregory  Wagners share when  it  took  the  creditor
payments (Weeks) from Richards share of the royalties, instead of
allocating payments to the creditors first and then following its
previous  calculations to distribute the remainder.  We  analyzed
this  argument  in  Wagner II and rejected it because  the  trial
courts  calculation mirrored the jurys findings and  because  the
trial  court  plainly stated, in both its November  and  December
          2005 orders, that it would calculate amounts due Gregory without
regard  for  the  Weeks Foundations claims.21  We concluded  that
calculating the amount due Gregory without deducting amounts owed
to   Richards  bankruptcy  creditors,  particularly   the   Weeks
Foundation  is  not inconsistent with the judgment  for  specific
performance.22   Thus,  because we have  already  considered  and
decided this issue, albeit in the context of Richards appeal from
a  different  superior  court order, Richards  argument  in  this
regard  is  barred  by  the  doctrine  of  issue  preclusion,  or
collateral estoppel.23
          But  even  if  Richards argument were not  collaterally
estopped, it would nonetheless fail.  Richard complains that  the
royalty income should have been allocated to his creditors  first
(including,  he  argues, to him, seeing  as  he  has  bought  out
several of his creditors), with only the remainder then allocated
between  him and Gregory.  But that is simply not what  the  2005
judgment  for specific performance requires.  The superior  court
explicitly  found that the agreement between Richard and  Gregory
did  not take into account the claims of Richards creditors other
than  Northrim  Bank.  The superior court thus ordered  that  the
amount Richard owed Gregory each month would be determined  based
upon  the  total  monthly  royalty  income  minus  only  Richards
obligation  to  Northrim Bank.  The superior court followed  this
formula  in  determining Richards arrears for the  February  2008
order.
          Accordingly,  we  affirm the superior  courts  February
2008 order.
     B.   The  Superior  Court  Did Not Err in  Denying  Richards
          Motion for Return of Funds (Appeal S-13175).
          Richard  also  appeals from the May 2008 order  denying
his  motion for return of funds.  Richard contends that the clerk
of  court,  who  was  acting  as the  escrow  agent  distributing
Richards  royalty  income  according to  the  2005  judgment  for
specific performance, should have paid him the funds allocated to
him  as  the  assignee  of the claims of two  of  his  bankruptcy
creditors instead of paying those funds directly to Gregory under
Gregorys  writ of execution.  He thus contends that the  superior
court  should  have granted his motion requesting the  return  of
those funds.
          Richard  makes three arguments as to why the  clerk  of
court should not have honored Gregorys writ of execution: (1)  at
the  time the writ of execution was served, the clerk [of  court]
was  not in possession of money belonging to Richard, nor was the
clerk  of  court  indebted to Richard, meaning that the  writ  of
execution did not obligate the clerk of court to pay the funds to
Gregory  under AS 09.40.040 (emphasis omitted); (2) the clerk  of
court  had  a  conflict of interest in acting both as  an  escrow
agent  and  in issuing writs of execution on the same funds  over
which  the  [c]lerk was charged with a fiduciary duty to  protect
and  distribute according to the Courts final judgment;  and  (3)
the  superior court effectively changed the material terms of the
Chapter  11  [bankruptcy] plan . . . without obtaining permission
from  the  United  States Bankruptcy Court for  the  District  of
Alaska.
          The  last of these three arguments duplicates precisely
the   inadequately  briefed  and  procedurally  barred   argument
discussed  above in our treatment of appeal S-13055.  We  dispose
of  it  in  the  same manner.  Richards other two arguments  lack
merit.   As the superior court noted in denying Richards  motion,
there  is no statutory or case law which supports Richard Wagners
untimely request for an additional exemption from execution.
          1.   It  was  proper  for the clerk  of  court  to  pay
               Gregory, under Gregorys writ of execution, royalty
               distributions allocated to Richard.
          Richards  bankruptcy plan provided for the  payment  of
Richards  debts to various creditors.  Richard has since  settled
with   some   of  these  creditors,  meaning  that  the   royalty
distributions  owed  to  them  under  the  bankruptcy  plan  were
assigned  to Richard.  In crafting its 2005 judgment for specific
performance, the superior court did not disturb this arrangement,
providing   that  Richard  would  be  allocated  and   paid   the
distributions  owed to the bankruptcy creditors whose  claims  he
had purchased.
          But  Richard  owed Gregory a substantial  sum  in  back
payments  on  their  contract  under  both  the  initial  damages
judgment  and  the  judgment for specific  performance.   Gregory
obtained  successive writs of execution for the  arrears  he  was
owed.  Pursuant to one of Gregorys writs, the clerk of court, who
had  received  Richards royalties as the escrow agent  under  the
judgment  for  specific performance, distributed to  Gregory  the
share  of the royalties that Richard was owed as the assignee  of
two  of his bankruptcy creditors claims.  Richard now argues that
by  distributing those funds to Gregory rather than Richard,  the
clerk  of court violated the obligation to obey the 2005 judgment
for specific performance.
          Alaska  Statute 09.40.040 requires that  [a]ll  persons
having  in  their possession personal property belonging  to  the
[debtor]  or owing a debt to the [debtor] must honor a  creditors
writ  of execution.24  Richard contends that at the time the writ
of  execution was served the clerk of court was not in possession
of  money  belonging to Richard Wagner, and was not  indebted  to
Richard  (emphasis  omitted).  He argues  that  this  means  that
pursuant to AS 09.40.040 the clerk was not under any duty to  pay
Gregory  Wagner  under the writ of execution.  Richards  position
thus  seems to be that his interest in the royalties flowing into
the  escrow account managed by the clerk of court was not subject
to execution by Gregory and should have been paid to Richard.
          But  the  single  case  Richard  cites  undermines  his
position.   In von Gemmingen v. First National Bank of  Anchorage
we  rejected  the  argument that a debtors  interest  in  certain
escrow accounts was not property subject to execution because  no
proceeds were held in the accounts at the time of levy.25  We held
that  property liable to execution includes not only funds within
named escrow accounts, but also the rights of and duties owed  to
judgment  debtors  pursuant to the terms of those  accounts,  and
that [f]unds deposited in escrow accounts then subject to a valid
levy  are encumbered at the time of deposit.26  Thus any interest
Richard  held  in the royalties flowing into the  escrow  account
          managed by the clerk of court was subject to Gregorys writ of
execution,  and  the  clerk  of court  acted  properly  under  AS
09.40.040  in honoring that writ and paying the funds to  Gregory
rather than Richard.
          2.   The  clerk  of court did not have an impermissible
               conflict of interest.
          Richard  also  argues that the clerk  of  court  had  a
conflict  of  interest in acting both as an escrow agent  and  in
issuing  writs  of  execution on the same funds  over  which  the
[c]lerk  was  charged  with  a  fiduciary  duty  to  protect  and
distribute  according  to the Courts final  judgment.   But  this
argument is inadequately briefed, as it is contained in a  single
conclusory   sentence,  without  citation  to  any   authority.27
Moreover,  it was not raised in his pleadings below, and  [a]s  a
general  rule,  an issue that was not raised in the  trial  court
will not be considered on appeal.28
          Accordingly,  we  affirm the superior courts  May  2008
denial of Richards motion for return of funds.
V.   CONCLUSION
          For  the  foregoing  reasons, we  AFFIRM  the  superior
courts decisions in all respects in both appeals.
_______________________________
     1     See Wagner v. Wagner (Wagner II), 205 P.3d 306 (Alaska
2009); Wagner v. Wagner (Wagner I), 183 P.3d 1265 (Alaska 2008).

     2    Wagner II, 205 P.3d at 308 (footnote omitted).

     3     Id.  at  308-09 (footnote omitted and  alterations  in
original).

     4    Id. at 309 (alteration in original).

     5    Id.

     6    Wagner I, 183 P.3d at 1266-67.

     7    Id. at 1268.

     8    Wagner II, 205 P.3d at 309.

     9    Id. at 307.

     10    Id. at 309-10.

     11    Id. at 309 (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979); Moran v. Holman, 501 P.2d 769, 771 (Alaska 1972)).

     12    205 P.3d at 309-10.

     13    See Alaska R. App. P. 204.

     14    Wagner II, 205 P.3d at 310.

     15    Id. at 309.

     16     Alaska  Rule  of  Civil Procedure 60(b)  provides  in
relevant part:

          On  motion  and upon such terms as are  just,
          the  court  may relieve a party or  a  partys
          legal  representative from a final  judgment,
          order,   or   proceeding  for  the  following
          reasons:
          
          . . . .
          
          (4) the judgment is void . . . .
          
     17     See A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska  1995)
([S]uperficial  briefing  and  the  lack  of  citations  to   any
authority constitutes abandonment of the point on appeal.).

     18    See supra note 16.

     19    205 P.3d at 307.

     20     It  is possible Richard actually intends to challenge
the  underlying 2005 judgment for specific performance.   But  as
discussed  above, to whatever extent Richard intends to challenge
the  2005  judgment for specific performance, his  arguments  are
untimely and procedurally barred.

     21    205 P.3d at 310.

     22    Id.

     23    See McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003)
([I]ssue preclusion, or collateral estoppel, renders an issue  of
fact  or  law  which  has  already been decided  by  a  court  of
competent jurisdiction conclusive in a subsequent action  between
the same parties, whether on the same or a different claim.).

     24    AS 09.40.040 provides:

          All   persons  having  in  their   possession
          personal  property belonging to the defendant
          or  owing a debt to the defendant at the time
          of  service upon them of the writ and  notice
          shall  deliver, transfer, or pay the property
          or  debts to the peace officer, or be  liable
          to  the  plaintiff  for  the  amount  of  the
          property  or  debts until the  attachment  is
          discharged   or  a  judgment   recovered   by
          plaintiff  is  satisfied.   Debts  and  other
          personal    property   may   be    delivered,
          transferred,  or  paid to the  peace  officer
          without  suit, and the receipt of the officer
          is a sufficient discharge.
          
See  also von Gemmingen v. First Natl Bank of Anchorage, 789 P.2d
353,  354  n.2  (Alaska  1990) (Alaska Statute  09.40.040,  which
defines   third   party   liability  for   improperly   resisting
attachment, . . . applies to writs of execution.).

     25    Id. at 354.

     26    Id. at 355-56.

     27    See supra note 17.

     28    Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997).

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