Tagaban v. City of Pelican

• Decision Date: 18 September 2015
• Docket Number: No. 7049,Supreme Court No. S-15253,Supreme Court No. S-15014,7049
• Parties: CLIFFORD W. TAGABAN, Appellant, v. CITY OF PELICAN, Appellee.
• Court: Supreme Court of Alaska (US)

CLIFFORD W. TAGABAN, Appellant, v. CITY OF PELICAN, Appellee.

Supreme Court No. S-15014

Supreme Court No. S-15253

No. 7049

SUPREME COURT OF THE STATE OF ALASKA

September 18, 2015

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.us.

(Consolidated)

Superior Court No. 1PE-11-00056 CI

OPINION

Appeal from the Superior Court of the State of Alaska, First Judicial District, Petersburg, William B. Carey, Judge.

Appearances: Fred W. Triem, Petersburg, for Appellant. Vance A. Sanders and Margot Knuth, Law Office of Vance A. Sanders, LLC, Douglas, for Appellee. Aesha Pallesen, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Amicus Curiae State of Alaska.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

FABE, Chief Justice.

I. INTRODUCTION

This appeal involves a claim by Clifford W. Tagaban that the City of Pelican foreclosed upon parcels of land against which he had a judicial lien without giving him proper notice. In 1998 Tagaban was awarded a judgment against the Kake Tribal Corporation, and the next year he recorded this judgment as a ten-year lien againstparcels of property the Corporation owned. Tagaban requested and received lien extensions from the superior court in 2008 and 2009, though he did not record the second lien extension until 2012. The City foreclosed upon the parcels in August 2010. Although the City's counsel notified Tagaban's counsel of the foreclosure via email in October 2010, eleven months before the redemption period ended, Tagaban filed suit to challenge the City's lack of formal foreclosure and redemption notice to him as well as the constitutionality of Alaska's foreclosure and redemption notice statutes.

The superior court granted summary judgment to the City on all issues and awarded attorney's fees to the City under both Alaska Rules of Civil Procedure 68 and 82. Because AS 29.45.330 only requires foreclosure notice to property owners and this statute meets constitutional due process requirements, Tagaban — as a lienholder and not a property owner — was not due foreclosure notice by the City. As a lienholder Tagaban could have requested pre-foreclosure notice under AS 29.45.350, but he did not. And because Tagaban did not record the second lien extension until after the redemption period ended, we affirm the superior court's conclusion that the City was not required to issue redemption notice to him under AS 29.45.440 because he was not a lienholder of record when notice of the expiration of the redemption period was due. We also affirm the superior court's award of Rule 68 attorney's fees but vacate its award of fees under Rule 82.

II. FACTS AND PROCEEDINGS

A. Facts

Tagaban served as a representative for a class that filed suit against the Kake Tribal Corporation.¹ The class, composed of Kake shareholders ("the Hanson-Tagaban class"), won a judgment against the Corporation in June 1998. InJuly 1999 Tagaban's counsel recorded the judgment in the Sitka Recording District.² At that time, the Corporation owned certain property in the City of Pelican. The Corporation went into bankruptcy from 1999 to 2002³ and sold property to the Ed Bahrt Management Company in 2008. The Hanson-Tagaban class attempted to execute its judgment against the Corporation in 2009. The superior court entered an order allowing execution in May 2009 but vacated that order in July. The Corporation still owes the Hanson-Tagaban class approximately $1.2 million.

Superior courts purported to extend Tagaban's lien twice. First, Superior Court Judge Michael A. Thompson extended it in 2008 for a period of three years, until June 2011. Tagaban promptly recorded this first extension. Second, when he vacated the execution order in July 2009, Superior Court Judge Trevor Stephens also ruled that "the running of the ten-year life of plaintiffs' judgment liens as defined in AS 09.30.010 is tolled during any period within which Kake Tribal Corporation's pending bankruptcy or Chapter 11 Reorganization Plan has impaired the plaintiffs' ability to execute on their judgment liens." Tagaban did not record this second lien extension until January 2012.

In May 2010 the City of Pelican published a foreclosure list demanding payment of delinquent property taxes. The foreclosure list included the parcels of land owned by the Ed Bahrt Management Company and subject to the Hanson-Tagaban class lien. Roughly $17,000 of the City's unpaid taxes were for real property taxes from 2008 and 2009 plus interest. The City asserted that greater amounts were also due for other alleged indebtedness, including delinquent personal property taxes and sales taxes,bringing the total due to roughly $31,000. In August 2010 the City filed a petition to foreclose its tax liens on the property.

After the court entered a judgment of foreclosure Tagaban's counsel, Fred Triem, inquired about the status of the property. The City's attorney informed Triem in an October 4, 2010 email that "Pelican's tax lien was for $31,175.51" and that "[t]he Foreclosure List was published in three prominent places in Pelican for thirty days beginning on May 14, 2010. It was properly served on the property owner, Edward Bahrt and Associates LLC." The email ended with "I hope this is what you needed."

In July 2011 the Pelican City Clerk issued a notice that the period of time within which the parcels could be redeemed would expire in September 2011. The City did not give direct notice of the expiration of the redemption period to the Hanson-Tagaban class or to Tagaban individually.

B. Proceedings

Tagaban filed suit in March 2012 to challenge the City's foreclosure on the property in which he claimed an interest.⁴ Tagaban challenged the City's lack of formal notice of foreclosure and expiration of the redemption period to him as a lienholder. He also challenged the constitutionality of Alaska's foreclosure and redemption noticestatutes on their face. In May 2012 the City made a Rule 68 offer of judgment to Tagaban for $3,250.⁵ The City asserts that this sum would provide Tagaban "with his full share of the class judgment (25 shares at $98 per share) plus $150 for his filing fee and $500 for attorney's fees for the preparation of the Plaintiff's Third Amended Complaint," which was filed by Tagaban solely in his individual capacity. Tagaban rejected this offer.

In May 2012 Tagaban moved for summary judgment, and the City opposed and filed a cross-motion for summary judgment in June. The City challenged the validity of the lien extensions. Superior Court Judge William B. Carey denied Tagaban's motion and granted the City's motion for summary judgment, concluding that courts do not have the authority to extend judgment liens beyond the ten years allowed by statute. The superior court awarded attorney's fees to the City under both Rule 68 and Rule 82.

On appeal Tagaban raises fourteen claims that complain of the City's lack of notice to him of the foreclosure and expiration of the redemption period. He also challenges the constitutionality of Alaska's foreclosure and redemption notice statutes. Tagaban contends that the lien extensions were valid, asserting that he had an ongoing interest in the property so that the City should have provided foreclosure and redemption notice to him. Tagaban also challenges the City's foreclosure and redemption dollar value calculations and the superior court's award of attorney's fees.

III. STANDARDS OF REVIEW

We review the grant of summary judgment de novo.⁶ In reviewing summary judgment, we read the record in the light most favorable to the non-movingparty and take all reasonable inferences in its favor.⁷ We will affirm a grant of summary judgment "if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law."⁸ We apply our independent judgment to questions of law, "adopting the rule of law most persuasive in light of precedent, reason, and policy."⁹ "Whether a superior court applied the law correctly in awarding attorney's fees is a question of law that we review de novo. We apply the independent [de novo] standard of review in deciding whether a superior court correctly determined a settlement offer's compliance with Rule 68."¹⁰

IV. DISCUSSION

Alaska Statute 29.45.330 requires municipalities to provide notice of foreclosure to property owners, and AS 29.45.440 requires municipalities to give lienholders notice at least 30 days before the redemption period expires for a foreclosed property subject to a lien. Tagaban's claims hinge on whether the City was constitutionally required to give foreclosure notice to him as a lienholder and whether he was a lienholder of record when the City provided notice of the expiration of the redemption period, as required by statute. We examine first Tagaban's pre-foreclosure and pre-redemption claims and then turn to his claims challenging the City's calculation of the redemption amount and the superior court's award of attorney's fees.

A. The City's Failure To Provide Written Foreclosure Notice To Tagaban Did Not Violate His Right to Due Process.

Alaska Statute 29.45.330 requires that, before a municipality forecloses on a property, it publish that fact in a local newspaper or, if none is available, in a public place, and "mail to the last known owner of each property . . . a notice advising of the foreclosure proceeding."¹¹ The statute does not require that similar notice be mailed to a lienholder of the property, but under AS 29.45.350 a lienholder can request that he receive the same notice if a municipality seeks to foreclose the property in which he has an interest. Tagaban argues that AS 29.45.330 violates the due process clauses of the Alaska Constitution¹² and the...