Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Raymond Dapo v. State of Alaska, Department of Health and Social Services, Office of Children’s Services and Taun Lucas (5/13/2022) sp-7593

Raymond Dapo v. State of Alaska, Department of Health and Social Services, Office of Children’s Services and Taun Lucas (5/13/2022) sp-7593

          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, email  

          corrections@akcourts.gov.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                   



RAYMOND  DAPO,                                                     )  

                                                                   )    Supreme Court No. S-17878  

                                                                                                 

                                                                                                        

                               Appellant,                          )  

                                                                   )    Superior  Court  No.  4FA-15-01892  CI  

          v.                                                       )  

                                                                                           

                                                                   )    O P I N I O N  

                                     

STATE OF ALASKA, DEPARTMENT                                       )  

                                                                                                         

                                          

OF HEALTH & SOCIAL SERVICES,                                       )    No. 7593 - May 13, 2022  

                                             

OFFICE OF CHILDREN'S SERVICES                                     )  

                   

and TAUN LUCAS,                                                    )  

                                                                   )  

                               Appellees.                          )  

                                                                   )  



                                                                                                     

                                                 

                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                               

                    Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                    Judge.  



                                                                                                      

                    Appearances:  Michael C. Kramer and Robert John, Kramer  

                                                                                                          

                     and Associates, Fairbanks,for Appellant. AishaTinker Bray,  

                                                                                                      

                    Assistant Attorney General, Fairbanks, and Treg R. Taylor,  

                                                                                                             

                    Attorney General, Juneau, for Appellee State of Alaska.  No  

                                                                    

                     appearance by Appellee Taun Lucas.  



                                                                                               

                    Before:   Winfree, Chief Justice, Maassen and Henderson,  

                                                                                            

                    Justices. [Carney and Borghesan, Justices, not participating.]  



                                               

                    HENDERSON, Justice.  



I.        INTRODUCTION  



                                                                                                                        

                    A man filed suit against his adoptive mother for sexual abuse that allegedly  



                                                                                                                          

occurred 13 years earlier.  He then agreed to release the adoptive mother from liability  


----------------------- Page 2-----------------------

in exchange for her filing a third-party equitable apportionment claim against the Office                                                                                                                                                                                                                                           



of Children's Services (OCS) and assigning the claim to him.                                                                                                                                                                                                         OCS challenged the   



validity of this assignment.                                                                                   The superior court agreed with OCS that the assignment of                                                                                                                                                                             



the adoptive mother's apportionment claim was void; it invalidated the assignment,                                                                                                                                                                                                                          



dismissed the claim with prejudice, and awarded OCS attorney's fees. The man appeals.                                                                                                                                                                                                                                                                             



Because a defendant prosecuting a third-party equitable apportionment claim possesses                                                                                                                                                                                                                                  



nothing   in   the claim itself that may be assigned,                                                                                                                                                           we hold                               that such claims are not                                                                 



assignable, and we affirm the superior court's invalidation of the assignment in this case.                                                                                                                                                                                                                                                                       



But we also conclude that it was error to dismiss the apportionment claim with prejudice;                                                                                                                                                                                                                            



we thus vacate the order of dismissal and remand for the court to provide the adoptive                                                                                                                                                  



mother a reasonable time to decide whether to pursue the claim herself.                                                                                                                                                                                           



II.                        FACTS AND PROCEEDINGS                                       



                           A.                         Facts  

                                                                                                                                                                                                                     1 assumed custody of himten years  

                                                      Raymond Dapo was born in 1990. OCS                                                                                                                                                                                                                                                 



later and placed him with Taun Lucas, a foster parent who later adopted him.  Dapo  

                                                                                                                                                                                                                                                                                                                                    



claimed that Lucas then began sexually abusing him.   Lucas denied that claim and  

                                                                                                                                                                                                                                                                                                                                             



alleged that Dapo sexually assaulted her.  

                                                                                                                                                                       



                           B.                         Proceedings  



                                                      In May 2015, when Dapo was 24 years old, he filed a complaint against  

                                                                                                                                                                                                                                                                                                                                



Lucas alleging that she had sexually abused him as a minor.  During the subsequent  

                                                                                                                                                                                                                                                                                                               



                           1                          The responsible agency at the time was the Division of Family and Youth                                                                                                                                                                                                       



 Services, OCS's predecessor agency. We                                                                                                                               use the acronymOCS                                                                     for consistency and ease  

of reference.   



                                                                                                                                                                          -2-                                                                                                                                                             7593
  


----------------------- Page 3-----------------------

months, Dapo and Lucas negotiated an agreement.                                                                  Dapo agreed to release Lucas from                                  



liability for his sexual abuse claims in exchange for Lucas filing a third-party claim                                                                                            

                                                                                                                                                                                  2      In  

against   OCS   for   equitable   apportionment   and   assigning   the   claim   to   Dapo.     



September  2015  Lucas  followed  through  on  the  agreement  and  filed  a  third-party  

                                                                                                                                                                      

apportionment claim against OCS.3  

                                                                                



                             OCS moved to dismiss Lucas's apportionment claim on multiple grounds,  

                                                                                                                                                                           

including that it was barred by the statute of repose4  and that it was non-assignable. The  

                                                                                                                                                                                      



superior court denied the dismissal motion, reasoning that the statute of repose was  

                                                                                                                                                                                     



unconstitutional as applied, but did not address OCS's assignability argument. In State,  

                                                                                                                                                                                  

Office of Children's Services v. Dapo (Dapo I)5 we granted OCS's petition for review  

                                                                                                                                                                               



on the statute of repose issue, vacated the superior court's order, and "instructed the  

                                                                                                                                                             



               2             An equitable apportionment claim permits "a defendant, as a third-party                                                                 



plaintiff, . . . to add as a third-party defendant any person whose fault may have been a                                                                                                   

cause of the damages claimed by the plaintiff." Alaska R. Civ. P. 14(c). "Judgment may                                                                                               

[then]   be   entered   against   [the]   third-party   defendant   in   favor   of   the   plaintiff   in  

accordance with the third-party defendant's respective percentage [apportioned] of fault                                                                                             

. . . ."         Id.  



               3             Given the time elapsed since the underlying events transpired, Dapo would  

                                                                                                                                                                                 

likely have been barred from bringing his own claims against OCS by the two-year  

                                                                                                                                                                          

statute of limitations in AS 09.10.070, even allowing for tolling under AS 09.10.140(a).  

                                                                                                                                                                                                

See Reasner v. State, Dep't of Health &Soc. Servs., Off. of Child.'s Servs., 394 P.3d 610,  

                                                                                                                                                                                     

614-18 (Alaska 2017) (discussing statute of limitations and holding that legislature did  

                                                                                                                                                                                       

not remove limitations period for "negligence suits against non-perpetrators" when it  

                                                                                                                                                                                           

allowed suits against alleged perpetrators of specified sexual offenses to be brought "at  

                                                                                                                                                                                        

any time").   Lucas's equitable apportionment claim against OCS, however, was not  

                                                                                                                                                                                       

subject to the statute of limitations in AS 09.10.070.  See Alaska Gen. Alarm, Inc. v.  

                                                                                                                                                                                          

Grinnell, 1 P.3d 98, 106 (Alaska 2000).  

                                                                          



               4             AS 09.10.055.  

                                      



               5             No. S-16339 (Alaska Supreme Court Order, July 18, 2017).  

                                                                                                                                                   



                                                                                            -3-                                                                                    7593
  


----------------------- Page 4-----------------------

superior court to first determine whether the statute of repose applied to Dapo's claims                                                     

before considering its constitutionality."                             6  



                       On remand, the superior court invited the parties to file additional briefing  

                                                                                                                                           



to address the statute of repose. Both parties did so. OCS also renewed its argument that  

                                                                                                                                                  



apportionment claims are not assignable.  The superior court again declined to address  

                                                                                                                                           



OCS's assignability argument; instead, the court held that the statute of repose barred  

                                                                                                                                             



Lucas's apportionment claim and dismissed it with prejudice.  Dapo appealed, and we  

                                                                                           

reversed in Dapo v. State, Office of Children's Services (Dapo II).7                                                   We concluded that  

                                                                                                                                                  



the statute of repose applied to Lucas's apportionment claim, but potentially applicable  

                                                                                                                                      

exceptions precluded dismissal of the claim at that time.8                                              We thus remanded "to the  

                                                                                                                                                   

superior court for further proceedings consistent with [our] opinion."9                                                            We did not  

                                                                                                                                                  

address whether the apportionment claim was assignable.10  

                                                                                  



                       OCS filed a motion for summary judgment on remand, contending that the  

                                                                                                                                                   



superior  court  should  dismiss  the  apportionment  claim  with  prejudice  because  no  

                                                                                                                                                   



exception to the statute of repose applied.  OCS simultaneously filed a separate motion  

                                                                                                                                            



to  invalidate  the  assignment  of  the  apportionment  claim.                                              OCS  again  renewed  its  

                                                                                                                                                   



argument  that  apportionment  claims  are  not  assignable  and  also  argued  that  the  

                                                                                                                                                  



assignment in this case was void on various public policy grounds.  The court granted  

                                          



OCS's motion to declare the assignment void on public policy grounds, holding that  

                                                                                                                                                 



            6          Dapo  v.  State,  Off.  of  Child.'s  Servs.  (Dapo  II),  454  P.3d  171,  174  (Alaska  



2019)  (referring  to  Dapo  I).  



            7          Id.  



            8          Id.  at   177-80.  



            9          Id.  at   182.  



            10         See  id.  at   171-82.  



                                                                         -4-                                                                   7593
  


----------------------- Page 5-----------------------

"[t]he assignment of rights by a tortfeasor to her victim in order to pursue a time-barred                                                                                                                                      



claim against a third party is invalid and void as against public policy."                                                                                                                                                The court did  



not address the assignability of apportionment claims more generally and did not rule on                                                                                                                                                                      



OCS's summary judgment motion related to the statute of repose, instead determining   



that motion to be moot. Despite its lack of ruling on that summary judgment motion, the                                                                                                                                                                      



court dismissed Lucas's apportionment claim with prejudice.                                                                                                                                



                                        OCS then moved for attorney's fees against Dapo.                                                                                                            Dapo responded that                                   



Lucas should bear the liability for attorney's fees because the assignment of her claim  



was void, so it was her third-party complaint, not Dapo's, that was dismissed.                                                                                                                                                                         The  



superior court awarded attorney's fees against Dapo, explaining that Dapo was "the                                                                                                                                                                      



source of this continued litigation."                                                                        



                                        Dapo appeals.                                



III.	               STANDARDS OF REVIEW                                          



                                        We   review   questions   of   law   de   novo,   including   whether   a   party   has  



                                               11                                                                                                                                                                                                                12  

standing to sue,                                                                                                                                                                                                                         

                                                    whether the superior court correctly applied our mandate on remand, 

and  whether  an  assignment  of  rights  is  valid.13                                                                                                        "The  superior  court's  procedural  

                                                                                                                                                                                                                                   

decisions generally are reviewed for abuse of discretion."14  

                                                                                                                                           



IV.	                DISCUSSION  



                                                                                                                                                                                                                                                         

                    A.	                  The Superior Court Did Not Err By Allowing OCS To Challenge The  

                                                                                                                                                                                                           

                                        Assignment Of Lucas's Equitable Apportionment Claim.  



                                                                                                                                                                                                                                                                  

                                        Dapo argues that the superior court made two fundamental errors when it  



                    11                  Bibi v. Elfrink                            , 408 P.3d 809, 814 (Alaska 2017).                                                     



                    12  

                                                                                                                                                                           

                                        Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009).  



                    13  

                                                                                                                                                                                                                               

                                         Wichman v. Benner, 948 P.2d 484, 486-87, 487 n.2 (Alaska 1997).  



                    14  

                                                                                                                                                                                                                                                   

                                        Marcyv. Matanuska-SusitnaBorough, 433P.3d1056,1059(Alaska2018).  



                                                                                                                               -5-	                                                                                                                    7593
  


----------------------- Page 6-----------------------

allowed OCS to challenge the assignment of Lucas's equitable apportionment claim.                                                                                                                                                                                                          



First, Dapo asserts that OCS lacked standing to challenge the assignment. Second, Dapo                                                                                                                                                                                 



contends that our prior decision in                                                                             Dapo II                     precludes OCS's challenge.                                                                   We disagree.   



                                            1.                   OCS has standing to challenge the assignment.                                                                           



                                           Dapo argues that OCS lacks standing "because the assignment does not                                                                                                                                            



impact the scope or extent of OCS's direct liability to Dapo."                                                                                                                                         According to Dapo, "the                                             



assignment presents                                               no  issue as to OCS's responsibility to pay its proportionate share of                                                                                                                                          



damages."     OCS   counters   that   it   "has   a   substantial  stake   in   the   outcome   of   the  



controversy" because it "would not be a party today" without the assignment.                                                                                                                                                                                  



                                            Standing in Alaska courts "is a 'rule of judicial self-restraint based on the                                                                                                                                                     



                                                                                                                                                                                                                                                                                   15  

principle that courts should not resolve abstract questions or issue advisory opinions.' "                                                                                                                                                                                                 

                                                                                                                                                                                                16  This requirement ensures  

                                                                                                                                                                                                                                                                

                                                                                                                                                               

"[A] basic requirement of standing is adversity of interests." 



"that  parties  will  energetically  pursue  their  opposing  positions  and  present  facts  

                                                                                                                                                                                                                                                                       

necessary  for  the  fair  resolution  of  the  case."17                                                                                                                      A  party  satisfies  the  adversity  

                                                                                                                                                                                                                                                        



requirement when the party has "a 'sufficient personal stake' in the outcome of the  

                                                                                                                                                                                                                                                                             



                      15                   Bibi, 408 P.3d at 816 (quoting                                                                        Ruckle v. Anchorage Sch. Dist.                                                                            , 85 P.3d     



 1030, 1034 (Alaska 2004)).                                       



                      16                   Id. (alteration in original) (quoting Law Project for Psychiatric Rights, Inc.  

                                                                                                                                                                                                                                                                            

v. State, 239 P.3d 1252, 1255 (Alaska 2010)).  

                                                                                                                             



                      17                   Myers v. Robertson, 891 P.2d 199, 203 (Alaska 1995).  

                                                                                                                                                                                                       



                                                                                                                                        -6-                                                                                                                             7593
  


----------------------- Page 7-----------------------

controversy   and   'an   interest   which   is   adversely   affected   by   the   complained-of  



                    18  

conduct.' "                                                                                                                         

                        "Neither the interest nor the injury asserted need be great; 'an identifiable  



                                                                                                                    19  

                                                                                                                  

trifle is enough for standing to fight out a question of principle.' " 



                                                                                                                                    

                        OCS has standing to challenge the assignment.  Prior to the assignment  



                                                                                                                                        

agreement, Lucas had responded to Dapo's complaint but had not filed an equitable  



                                                                                                                                                

apportionment claim.  Dapo then agreed to release Lucas from liability contingent upon  



                                                                                                                                                    

Lucas filing an apportionment claim against OCS and assigning the claim to Dapo.  In  



                                                                                                                                  

other  words,  Lucas  expressly  undertook  an  obligation  to  initiate  legal  proceedings  



                                                                                                                                               

against OCS - then did so -as part of the agreement to assign her apportionment claim  



                                                                                                                                     

to Dapo.  While Lucas could have pursued a claim against OCS absent the assignment  



                                                                                                                                     

agreement, she would have no obligation to do so.   OCS therefore has a "sufficient  



                                                                                                                                                   

personal stake" in this controversy and "an interest which is adversely affected by the  



                                            20  

                            

complained-of conduct." 



                        2.         OCS's challenge was not already raised and resolved.  

                                                                                                                       



                        Dapo also contends that the"limitedscopeof remand" in Dapo II precludes  

                                                                                                                                        



OCS's challenge to the assignment, relying on both the law of the case doctrine and his  

                                                                                                                                                   



interpretation of our mandate.  OCS disagrees, noting that Dapo II "did not decide any  

                                                                                                                                                  



substantive issue concerning the assignment."  

                                                                                    



                        "The law of the case doctrine is 'a doctrine of economy and of obedience  

                                                                                                                                       



            18         Keller v. French             , 205 P.3d 299, 304 (Alaska 2009) (footnote omitted) (first                                 



quoting  Ruckle, 85 P.3d at 1040; and then quoting                                       Alaskans for a Common Language,              

Inc. v. Kritz        , 3 P.3d 906, 915 (Alaska 2000)).              



            19          Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006) (quoting Wagstaff v.  

                                                                                                                                                     

Superior Ct., Fam. Ct. Div., 535 P.2d 1220, 1225 n.7 (Alaska 1975)).  

                                                                                                              



            20         Keller, 205 P.3d at 304 (first quoting Ruckle, 85 P.3d at 1040; and then  

                                                                                                                                                

quoting Alaskans for a Common Language, Inc. , 3 P.3d at 915).  

                                                                                                        



                                                                         -7-                                                                   7593
  


----------------------- Page 8-----------------------

                                                 21  

to the judicial hierarchy' "                         that "is 'grounded in the principle of stare decisis' and 'akin                                       



                                                             22  

to the doctrine of res judicata.' "                                                                                                                      

                                                                  It "generally 'prohibits the reconsideration of issues  

                                                                                                                                23   "Even issues not  

                                                                                                                                                              

                                                                                                                               

which have been adjudicated in a previous appeal in the same case.' " 



explicitly  discussed  in  the  first  appellate  opinion,  but  directly  involved  with  or  

                                                                                                                                                               

necessarily inhering in the decision will be considered the law of the case."24  And "when  

                                                                                                                                                        



a party appeals some aspects of a trial court decision but not others, the trial court's  

                                                                                                                                                      



rulings  on  the  non-appealed  issues  may  become  the  law of  the  case following  the  

                                                                                                                                                             

appellate decision."25   "Previous decisions on such issues . . . should not be reconsidered  

                                                                                                                                            



on  remand  or  in  a  subsequent  appeal  except  'where  there  exist  "exceptional  

                                                                                                                                          

circumstances" presenting a "clear error constituting a manifest injustice." ' "26  

                                                                                                                                                



                         No court had adjudicated the validity of the assignment until the decision  

                                                                                                                                                    



underlying this appeal. Although OCS consistently argued to the superior court that the  

                                                                                                                                                              



assignment was void,  that court previously declined to address OCS's argument.  Until  

                                                                                                                                                          



now, there was no superior court decision on the validity of the assignment to appeal.  

                                                                                                                                                                     



             21          Beal v. Beal            , 209 P.3d 1012, 1017 (Alaska 2009) (quoting                                              Dieringer v.   



Martin, 187 P.3d 468, 473-74 (Alaska 2008)).                               



             22          Id. at 1016 (first quoting Alaska R.R. Corp. v. Native Vill. of Eklutna , 142  

                                                                                                                                                             

P.3d 1192, 1201 (Alaska 2006); and then quoting State, Com. Fisheries Entry Comm'n  

                                                                                                                                                    

v. Carlson, 65 P.3d 851, 859 n.52 (Alaska 2003)).  

                                                                                  



             23          Id. (quoting Carlson, 65 P.3d at 859 n.52).  

                                                                                                



             24          Native Vill. of Eklutna, 142 P.3d at 1201(quoting Bowers Off. Prods., Inc.  

                                                                                                                                                             

v. Fairbanks N. Star Borough Sch. Dist., 918 P.2d 1012, 1014 (Alaska 1996)).  

                                                                                                                                       



             25          Beal, 209 P.3d at 1017.  

                                                            



             26          Id. at 1016-17 (quoting Carlson, 65 P.3d at 859).  

                                                                                                             



                                                                               -8-                                                                        7593
  


----------------------- Page 9-----------------------

                                                                                                   27  

And we did not analyze the assignment in                                          Dapo II         ,    so its validity was not "directly           



                                                                                                 28  

involved" or "necessarily inhering" in our decision.                                                                                                        

                                                                                                      The law of the case doctrine thus  



                                                                                

does not preclude OCS's challenge to the assignment.  



                                                                                                                                                              

                         Our mandate in Dapo II also does not prevent OCS from challenging the  



                                                                                                                                                    

assignment.  Dapo misreads our prior mandate. In Dapo II we remanded to the superior  

                                                                                                                    29  without providing any  

                                                                                                                                                             

court "for further proceedings consistent with this opinion," 

specific instructions to the court.30                               Contrary to Dapo's assertions, we did not remand  

                                                                                                                                                      



specifically "for the parties to engage in litigation of the merits of Dapo's claims."  Nor  

                                                                                                                                                             

did we decide any substantive issues concerning the validity of the assignment.31   OCS's  

                                                                                                                                                        



motion  to  invalidate  the  assignment  was  thus  consistent  with  our  opinion,  and  the  

                                                                                                                                                             



superior court did not err by reaching the merits of OCS's challenge to the assignment.  

                                                                                                                                              



             B.	         The Superior Court Did Not Err By Declaring The Assignment Of  

                                                                                                                                                              

                         Lucas's Equitable Apportionment Claim Void And Invalidating The  

                                                                                                                                                            

                         Agreement Between Lucas And Dapo.  

                                                                                           



                         On the merits Dapo argues that the superior court erred by declaring the  

                                                                                                                                                              



assignment  void.                     He  contends  that  "the  assignment  of  causes  of  action  between  

                                                                                                                                                   



otherwise-adverse parties to a transaction is routinely upheld" and analogizes equitable  

                                                                                                                                                   



apportionment to other claims like contribution, indemnity, and subrogation.   OCS  

                                                                                                                                                          



responds that an equitable apportionment claim is not assignable because the defendant  

                                                                                                                                                 



             27          See  454  P.3d   171,   171-82  (Alaska  2019).  



             28          Beal,  209  P.3d  at   1017  (quoting  Carlson,  65  P.3d  at  859  n.52).  



             29          Dapo  II,  454  P.3d  at   182.  



             30          Cf.  Dieringer  v.  Martin,  187  P.3d  468,  474  (Alaska  2008)  (discussing  prior  



decision remanding to superior court "for reconsideration of attorney's fees and fees of                                                                        

                                       

the personal representative in light of the conclusions expressed herein").                                                



             31          See Dapo II, 454 P.3d at 171-82.  

                                                                          



                                                                               -9-	                                                                       7593
  


----------------------- Page 10-----------------------

possesses   nothing   to   convey.     We   agree   with   OCS   and   conclude   that   equitable  



                                                                                         32  

apportionment claims are not assignable.                                                                                                                                                   

                                                                                               Furthermore, because the assignment was an  



                                                                                                                                                                

essential part of the exchange, the agreement between Lucas and Dapo is unenforceable.  



                                                                                                                                                                                         

                              1.	           Equitable apportionment claims are not assignable because the  

                                                                                                                       

                                             defendant possesses nothing to convey.  



                                                                                                                                                                                      

                              Equitable apportionment is a mechanism for defendants "to mitigate their  



                                                                                                                                                                                            33  

                                                                                                                                                                                                  

damages by filing third-party claims against other potentially responsible persons." 



                                                                                                                                                                                           

This "vindicat[es] not just the right of defendants to have damages apportioned  in  



                                                                                                                                                                                         

accordance with their fault, but the commensurate duty of responsible third parties to pay  



                        34  

                                                                                                                                                              

plaintiffs."                  Alaska Civil Rule 14 defines the procedure for equitable apportionment,  



                                                                                                                                                                                      

permitting "a defendant, as a third-party plaintiff, [to] join any party whose fault may  

have been a cause of the damages claimed by the plaintiff."35  If the defendant's third- 



                                                                                                                                                                                         

party claim succeeds, the court can enter judgment in favor of the plaintiff against the  



                                                                                                                                                             36  

                                                                                                                                                  

third-party defendant according to the percentage of apportioned fault. 



                              When an assignor assigns a legal claim to an assignee, what is assigned is  

                                                                                                                                                                                             



               32             Dapo also faults the superior court for ostensibly relying on "the perceived                                                                 



moral character of the assignor" to invalidate the assignment on public policy grounds,                                                                                      

and he challenges one of the court's factual findings. We do not address these arguments                                                                                  

because we conclude that equitable apportionment claims are not assignable for other                                                                                                 

reasons, and the challenged factual finding is irrelevant.                                            



               33            Alaska  Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98, 101 (Alaska 2000).  

                                                                                                                                                  

                                                                                                                                                                    



               34            Id. at 102.  

                                           



               35            Id. at 101 (citing Alaska R. Civ. P. 14(c)).  

                                                                                                            



               36            Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 642 (Alaska 2007) (citing  

                                                                                                                                                  

                                                                                                                                                                                  

Alaska R. Civ. P. 14(c)).  

                                        



                                                                                            -10-	                                                                                    7593
  


----------------------- Page 11-----------------------

                                                                                     37  

called a "chose in action."                                                                 A chose in action is a proprietary right to a debt, money, or                                                                                                                            

thing that can be recovered through a lawsuit.                                                                                                          38                                                                                                    

                                                                                                                                                               Examples include "debts of all kinds,  



                                                                                                                                                                                                                                                             

tort claims, rights to recover possession or ownership of real or personal property,  



                                                                                                                                                                                                                                                                         

various kinds of instruments and documents which embody property rights, and rights  

                                                                            39  The right must be "part of a person's estate, assets, or property,  

                                                                                                                                                                                                                                                              

to intangible property." 

 as opposed to a right arising from the person's legal status."40  

                                                                                                                                                                             

                                            Dapo is correct that, as a general rule, most legal claims can be assigned.41  

                                                                                                                                                                                                                                                                                               



We have previously held, for example, that claims for contribution, indemnity, and  

                                                                                                                                                                                                                                                                               



                      37                    See  9 J  OHN  E.M                                  URRAY,J   R., C                             ORBIN ON                        CONTRACTS  § 47.2 (rev. ed. 2007);                                                         



PADRM Gold Mine, LLC v. Perkumpulan Inv. Crisis Ctr. Dressel -                                                                                                                                                                     WBG, 498 P.3d                            

 1073, 1076-77 (Alaska 2021) (discussing involuntary assignment of legal malpractice                                                       

claims).  



                      38                    See Chose In Action, B                                                       LACK 'S  LAW  DICTIONARY  (9th ed. 2009),                                                                                                  quoted  

                                                                                          

with approval in McDonnell v. State Farm Mut. Auto. Ins. Co.                                                                                                                                                , 299 P.3d 715, 720 n.15                                          

 (Alaska 2013) (defining "chose in action" as "1. A proprietary right in personam, such                                                                                                                                                                                      

as a debt owed by another person, a share in a joint-stock company, or a claim for                                                                                                                                                                                                

damages in tort. . . . 2. The right to bring an action to recover a debt, money, or thing.                                                                                                                                                                                                     

 3.  Personal property that one person owns but another person possesses, the owner being                                                                                                                                                                                 

able to regain possession through a lawsuit.").                                                                    



                      39                    9 M          URRAY, J   R.,  supra  note 36, § 47.2 (citing R                                                                                            ESTATEMENT  (SECOND)  OF  



 CONTRACTS § 316 cmt. a. (A                                                                    M. L. I             NST . 1981)).   

                                          



                      40                    Right,  Proprietary Right                                                        , B      LACK 'S  LAW  DICTIONARY  (11th ed. 2019).                                                                             



                      41                    See PADRM Gold Mine, LLC                                                                         , 498 P.3d at 1077 ("We have recognized as                                                                                              



 a general rule that 'a cause of action can be assigned if it survives' the death of the                                                                                                                                                                                         

prospective plaintiff.  And the Alaska legislature has specified that all claims besides  

                                                                                                                                                                                                                                                                   

defamation survive." (footnote omitted) (first quoting                                                                                                                            Andersen v. Edwards                                                     , 625 P.2d   

282, 290 (Alaska 1981); and then citing AS 09.55.570)).  

                                                                                                                                                  



                                                                                                                                        -11-                                                                                                                                7593
  


----------------------- Page 12-----------------------

                                                42  

subrogation are assignable.                          These claims fall squarely within the definition of "chose                                



in   action"   because   they   vindicate   the   assignor's   right   to   recover   something   owed  

                                                                                  43    After an assignment of one of these  

independent from the assignor's legal status.                                                                                                     



claims, the assignee receives the assignor's right to recover and can vindicate this right  

                                                                                                                                                   



through a lawsuit.  

                   



                        Equitable apportionment claims are fundamentally different because they  

                                                                                                                                                   



arise directly from a person's legal status as a defendant and do not vindicate the right  

                                                                                                                           



to  recover  something  owed.                            The  role  of  the  third-party  plaintiff  in  an  equitable  

                                                                                                                                          



apportionment claim is inextricably intertwined with the role of the defendant.  Under  

                                                                                                                           



Civil Rule 14(c), "a defendant, as a third-party plaintiff, may" join other potentially  

                                                                                                                                        

responsible third parties.44                     The third-party plaintiff has no independent right to recover  

                                                                                                                                              



from the apportionment claim; instead, the defendant benefits from the claim prevailing  

                                                                                                                                         



in the form of reduced damages, and "the plaintiff [then benefits] in the form of a third- 

                                                                                                                                                 

                                                                         45     OCS  correctly  notes that the third-party  

party judgment ensuring  full payment."                                                                                                

                                                       



plaintiff, Lucas, "seeks solely to shift some or all of the liability for [Dapo's] damages"  

                                                                                                                                          



from herself to the third-party defendant, OCS.  

                                                                                      



                        To understand the issue with Lucas's assignment, it is helpful to consider  

                                                                                                                                            



how a hypothetical assignment of an equitable apportionment claim to a non-party  

                                                                                                                                         



assignee would function.  Once the defendant assigns the claim, the non-party assignee  

                                                                                                                                            



would become the third-party plaintiff and undertake the burden of prosecuting the claim  

                                                                                                                                                  



            42          Deal v. Kearney              , 851 P.2d 1353, 1355-56 (Alaska 1993).                        



            43          See   id.   at   1356   (noting   that  "the   injury   would   be   an   incurrence   of   a  



monetary obligation to [another] party").                   



            44          Alaska R. Civ. P. 14(c) (emphasis added).  

                                                                                       



            45          Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 642 (Alaska 2007).  

                                                                                                                                        



                                                                          -12-                                                                    7593
  


----------------------- Page 13-----------------------

against the third-party defendant.                                                                                 Yet were the assignee to prevail, the assignee would                                                                                                          



recover nothing: theresultwouldonly                                                                                              reducethedefendant-assignor'sapportioned                                                                                                              fault  



and allowtheplaintiffto                                                           recover proportionatelyfromthe                                                                                third-party defendant. Despite    



having been purportedly assigned a claim, the assignee would have no right to recover                                                                                                                                                                                        



on the claim, as only the plaintiff would be entitled to those funds.                                                                                                                                                                   The fact that here                              



Dapo is both the plaintiff and the assignee does not defeat the fallacy of this assignment.                                                                                                                                                                    



                                              Giventhat                          third-party equitableapportionment claims                                                                                                       arisefromaperson's                     



legal status as a defendant and could not provide an assignee a right to recover, we                                                                                                                                                                                                        



conclude that they fall outside the definition of "chose in action" and are not assignable.                                                                                                                                                                                                               



We therefore affirm the superior court's decision invalidating the assignment of Lucas's                                                                                                                                                                                     



apportionment claim to Dapo.                                                      



                                              2.	                   The   agreement   between   Dapo   and   Lucas   is   unenforceable  

                                                                    without the assignment.                     



                                              When a provision of an agreement is found to be unenforceable, a court                                                                                                                                                              



may enforce the rest of the agreement if the provision "is not an essential part of the                                                                                                                                                                                                     



                                                                46  

agreed exchange."                                                                                                                                                                                                                                                                       

                                                                          If the unenforceable provision is essential to the exchange, "the  



                                                                                                                                                                                                                                                                                   

inequality [between the parties' performances] will be so great as to make the entire  



                                                                                             47  

                                                                                                                                                                                                                                                                                           

agreement unenforceable."                                                                                Likewise, "courts try to give effect to agreements the  



                                                                                                                                                                                                                                                                                     

parties have made, not to agreements the parties have not made but that the courts think  

                                                                             48   A court thus cannot enforce an agreement without an essential  

                                                                                                                                                                                                                                                                          

would have been just." 



provision because "the court cannot be sure that in that provision's absence the parties  

                                                                                                                                                                                                                                                                                



                       46                    Zerbetz v. Alaska EnergyCtr.                                                                       , 708 P.2d 1270, 1282                                                   (Alaska1985) (quoting                              



RESTATEMENT  (SECOND) OF  CONTRACTS   § 184(1) (A                                                                                                                                     M. L. I             NST . 1981)).   



                       47                    Id.  (quoting R                                  ESTATEMENT  (SECOND) OF  CONTRACTS   § 184 cmt. a).                                                                                                                           



                       48                    Id.  



                                                                                                                                             -13-	                                                                                                                                    7593
  


----------------------- Page 14-----------------------

                                           49  

would have agreed at all."                      Whether the provision is essential "depends on its relative                         

importance in the light of the entire agreement between the parties."                                            50  



                      The assignment of Lucas's apportionment claim to Dapo was essential to  

                                                                                                                                             



their agreed exchange.  As noted above, Lucas had not filed an apportionment claim  

                                                                                                                                       



prior to the assignment agreement.  After signing the assignment agreement and filing  

                                                                                                              



the apportionment claim, Lucas testified at an early hearing in the case that she did not  

                                                                                                                                           



want to participate in the lawsuit. Dapo's attorney also explained during the hearing that  

                                                                                                                                           



OCS  "is  essentially  [Dapo's]  target  defendant"  and  that  Dapo  "believes  OCS  is  

                                                                                                                                             



responsible for all the damages he's suffered." And as OCS notes, Lucas has essentially  

                                                                                                                               

"been a non-participant in this litigation" since the assignment.51   This demonstrates that  

                                                                                                                                          



the assignment ofLucas's apportionment claimwas ofparamount interest to both parties,  

                                                                                                                                     



and without it we cannot be sure that the parties would have reached an agreement at  

                                                                                                                                             

all.52    Therefore, the entire agreement between Dapo and Lucas is unenforceable.  

                                                                                                               



           C.	        It  Was  An  Abuse  Of  Discretion  To  Dismiss  Lucas's  Equitable  

                                                                                                                              

                      Apportionment Claim With Prejudice.  

                                                                          



                      After invalidating the assignment agreement, the superior court dismissed  

                                                                                                                                



Lucas's apportionment claim with prejudice. Dapo argues this was error, noting that the  

                                                                                                                                            



claim remains potentially viable even if the assignment of the claimis invalid. We agree.  

                                                                                                                                       



                      In Dapo  II  we reversed the dismissal of Lucas's apportionment claim  

                                                                                                                                       



because we held that it "may fall within" an exception to the statute of repose when  

                                                                                                                                                  



           49         Id.  at   1282-83.  



           50         Id.  at  1282  (quoting  RESTATEMENT  (SECOND) OF  CONTRACTS  §  184  cmt.  a).  



           51         See  also  Dapo  II,  454  P.3d   171,   174  (Alaska  2019)  ("No  appearance  by  



Appellee  Taun  Lucas.").  



           52         See  Zerbetz,  708  P.2d  at   1282-83.  



                                                                     -14-	                                                             7593
  


----------------------- Page 15-----------------------

                                                                                                                                        53  

"taking all facts in the light most favorable to . . . the non-moving party."                                                                We did not      



express a view on the ultimate viability of the claim, making it clear that we did "not                                                                    



mean to preclude summary judgment if the superior court determines that 'no reasonable                                                         

                                                                                                                                           54     No  such  

person   could   discern   a   genuine   factual   dispute   on   a   material   issue.'   "                                                             



determination has yet been made.  

                                                    



                         It was an abuse of discretion to dismiss the apportionment claim with  

                                                                                                                                                          



prejudice.  "An involuntary dismissal with prejudice is a harsh sanction which should  

                                                                                                                                                      

only be applied in extreme cases."55                                 The conclusion that apportionment claims are not  

                                                                                                                                                             



assignable does not impact the viability of Lucas's apportionment claim against OCS.  

                                                                                                                                                                    



Nor does it warrant denying Lucas the opportunity to pursue her claim - if she so  

                                                                                                                                                              



desires.  We thus vacate the dismissal of Lucas's apportionment claim.  On remand, the  

                                                                                                                                                             



superior court should allow Lucas a reasonable opportunity to decide whether to pursue  

                                                                                                                                                       



her claim.  The court should bear in mind that Lucas may want to seek advice from  

                                                                                                                                                         



independent counsel prior to making a decision, especially given that Dapo's agreement  

                                                                                                                                                



to release her from liability is no longer enforceable.  

                                                                            



             D.          We Vacate The Award Of Attorney's Fees To OCS.  

                                                                                                                       



                         Because we vacate the superior court's dismissal of Lucas's apportionment  

                                                                                                                                        



claim, we also vacate the court's attorney's fee award.   We express no view on the  

                                                                                                                                                             



propriety of awarding attorney's fees to OCS against Dapo under Alaska Civil Rule 82.  

                                                                                                                                                             



V.           CONCLUSION  



                         We  AFFIRM  the  superior  court's  order  invalidating  the  assignment  

                                                                                                                                             



             53          Dapo II        , 454 P.3d at 177-80.         



             54          Id. at 180 (quoting Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514,  

                                                                                                                                                           

520 (Alaska 2014)).  

                         



             55          Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska 1996).  

                                                                                                                              



                                                                             -15-                                                                        7593
  


----------------------- Page 16-----------------------

agreement, VACATE the court's orders dismissing Lucas's equitable apportionment                                                                                                                                                                                                                                                                                                                                                              



claim and awarding attorney's fees to OCS, and REMAND with instructions to provide                                                                                                                                                                                                                                                                                                                                                                                                       



Lucas a reasonable time to decide whether to pursue her apportionment claim.                                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                            -16-                                                                                                                                                                                                                        7593
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC