Dapo v. State, Supreme Court No. S-17878

CourtSupreme Court of Alaska (US)
Writing for the CourtHENDERSON, Justice.
Citation509 P.3d 376
Parties Raymond DAPO, Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services and Taun Lucas, Appellees.
Docket NumberSupreme Court No. S-17878
Decision Date13 May 2022

509 P.3d 376

Raymond DAPO, Appellant,
State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services and Taun Lucas, Appellees.

Supreme Court No. S-17878

Supreme Court of Alaska.

May 13, 2022

Michael C. Kramer and Robert John, Kramer and Associates, Fairbanks, for Appellant.

Aisha Tinker 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.]




509 P.3d 379

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 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.


A. Facts

Raymond Dapo was born in 1990. OCS1 assumed custody of him ten years 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 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 against OCS for equitable apportionment and assigning the claim to Dapo.2 In 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

509 P.3d 380

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


We review questions of law de novo, including whether a party has standing to sue,11 whether the superior court correctly applied our mandate on remand,12 and whether an assignment of rights is valid.13 "The superior court's procedural decisions generally are reviewed for abuse of discretion."14


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 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

509 P.3d 381

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 principle that courts should not resolve abstract questions or issue advisory opinions.’ "15 "[A] basic requirement of standing is adversity of interests."16 This requirement ensures "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 controversy and ‘an interest which is adversely affected by the complained-of conduct.’ "18 "Neither the interest nor the injury asserted need be great; ‘an identifiable trifle is enough for standing to fight out a question of principle.’ "19

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 complained-of conduct."20

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

Dapo also contends that the "limited scope of 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 to the judicial hierarchy’ "21 that "is ‘grounded in the principle of stare decisis’ and ‘akin to the doctrine of res judicata.’ "22 It "generally ‘prohibits the...

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