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. 

THE SUPREME COURT OF THE STATE OF ALASKA 

DEBORAH KYZER IVY, Individually 

and as a Derivative Plaintiff on behalf of

the interests of CALAIS COMPANY, 

INC., and its SHAREHOLDERS, 

Appellant, 

v. 

CALAIS COMPANY, INC., C.R. 

“KELLY” FOSS, Individually, and as a 

Shareholder and Former President and 

Board Member of CALAIS COMPANY,

INC., JUDY FOSS, Individually and as 

President and Board Member and Shareholder of CALAIS COMPANY, INC., 

THE C.R. FOSS LIVING TRUST, 

McMAC FAMILY, LLP, THE RODNE

L. JOHNSTON TRUST, BRIAN W. 

DURRELL, Individually, and DURREL

LAW GROUP, PC, WELLS FARGO 

ALASKA TRUST COMPANY, NA, 

JOHN MCMANAMIN, as a Shareholder

and Officer, and Former Officer and 

Board Member and General Manager of 

CALAIS COMPANY, INC. (but not 

individually), MATTHEW SWEENEY, 

Individually and as Putative Director of 

CALAIS COMPANY, INC., MICHAEL

PETERSON, as a Board Member and 

Shareholder of CALAIS COMPANY, 

INC. (but not individually), and JANE/ 

JOHN DOE(S) I to XX 

) 

) Supreme Court No. S-15967 

Superior Court No. 3AN-07-08813 CI 

O P I N I O N 

No. 7176 – June 2, 2017 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Y ) 

) 

L ) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 
 

 

 

 

 

 

CONSPIRATORS, 

Appellees. 

)
 

)
 

)
 

)
 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, William F. Morse, Judge. 

Appearances: Phillip Paul Weidner and Lisa Rosano, Phillip 

Paul Weidner &Associates, APC, Anchorage, and Charles E. 

Cole, Law Offices of Charles E. Cole, Fairbanks, for 

Appellant. Jeffrey M. Feldman, Summit Law Group, Seattle, 

Washington, and Susan Orlansky, Reeves Amodio LLC, 

Anchorage, for Appellees Calais Company, Inc., J. Foss, The 

C.R. Foss Living Trust, McMac Family, LLP, 

J. McManamin, M. Sweeney, and M. Peterson. Notice of 

nonparticipation filed by Patrick B. Gilmore, Atkinson, 

Conway & Gagnon, Anchorage, for Appellees B. Durrell and 

Durrell Law Group, PC. Notice of nonparticipation filed by 

Gary A. Zipkin and Michael S. McLaughlin, Guess & Rudd 

P.C., Anchorage, for Appellee Wells Fargo Alaska Trust Co., 

N.A. No appearance by Appellee Rodney L. Johnston Trust. 

Before: Stowers,ChiefJustice,Winfree,Bolger, andCarney, 

Justices. [Maassen, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Deborah Ivy is a shareholder in Calais Company, Inc., a closely held 

corporation. Ivy sued Calais in 2007 seeking dissolution of the company. The parties 

settled, and Calais agreed to buy out Ivy’s shares of the company based on a valuation 

of Calais conducted by a three-member appraisal panel. The appraisers returned an 

initial valuation in 2009. The superior court approved that valuation, but Calais 

appealed. We reversed and remanded, concluding that the appraisers had failed to 

-2- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

understand their contractually assigned duty. The appraisal panel returned a second 

valuation in October 2014, which the superior court again approved. Ivy now appeals, 

arguing (1) that on remand the superior court improperly instructed the appraisers; (2) 

that the appraisers made substantive errors in their valuation; and (3) that she is entitled 

to post-judgment interest. For the reasons explained below, we affirm the appraisal 

panel’s valuation of Calais, but we reverse the superior court’s denial of Ivy’s request 

for post-judgment interest. 

II. FACTS AND PROCEEDINGS 

A. Prior Proceedings In Calais Co. v. Ivy 

As this court summarized in Calais Co. v. Ivy, 

1 Ivy filed suit against Calais 

in 2007 seeking involuntary dissolution of the corporation under AS 10.06.628. Calais 

owns several tracts of land in Anchorage and does business in real estate acquisition, 

development, rental, and leasing. The parties reached a settlement agreement (the 

Agreement) in 2009 in which Ivy agreed to dismiss all her claims and Calais agreed to 

purchase Ivy’s shares of the company’s stock based on a valuation of the company by 

a three-member appraisal panel. The Agreement required the appraisers to calculate the 

“fair value under AS 10.06.630(a).” That statute provides that “[t]he fair value shall be 

determined on the basis of the liquidation value, taking into account the possibility of 

sale of the entire business as a going concern in liquidation.”2 After the panel was 

assembled, two of the appraisers determined that the “fair market value” of Calais was 

$92.5 million. The third appraiser wrote a letter to the superior court stating that he 

believed that the majority’s methodology failed to comply with the Agreement. He 

argued that the majority had determined the “fair market value” of Calais’s real estate 

1 303 P.3d 410, 411-14 (Alaska 2013). 

2 AS 10.06.630(a). 

-3­ 7176 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

holdings and not, in his view, the “fair value” of the corporation as required by the 

Agreement. Specifically, he objected to the majority’s failure to account for any 

applicable capital gains taxes and liquidation costs. The superior court upheld the 

majority’s valuation, and Calais appealed to this court. 

Wefirst determined that theterms oftheAgreement authorized thesuperior 

court to review the appraisers’ decision in order to ensure that the appraisers complied 

with the contractual terms of the Agreement.3 We distinguished this from secondguessing the valuation reached by the appraisers, which was expressly prohibited by the 

Agreement.4 We then interpreted “fair value” as used in the Agreement to mean not the 

“fair market value” of the company’s assets (as the majority appraisers assumed), but the 

“liquidation value” of the company, as that term is used in AS 10.06.630(a).5 We 

explained that the “liquidation value” included deductions for any applicable capital 

gains taxes and liquidation costs, and we reversed the superior court’s decision because 

the majority appraisers had failed to take those taxes and costs into consideration.6 

B. Proceedings On Remand 

On remand the superior court instructed the appraisers to calculate the fair 

value of Calais in accordance with our opinion and to submit a report stating that value 

and describing their reasoning. The panel members then completed their appraisal and 

issued a report. The report explained that the appraisers summed up the individual 

property values of Calais’s real estate holdings to arrive at a “cumulative Market Value” 

of $87,580,000. The report then explained how the appraisers subtracted liquidation 

3 Calais, 303 P.3d at 414-17. 

4 Id. at 415. 

5 Id. at 418-20. 

6 Id. at 419-20. 

-4- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

costs and capital gains taxes and accounted for Calais’s other assets and liabilities to 

reach a final “fair value” of $54 million. 

Ivy moved the superior court to reject the panel’s determination of fair 

value. Ivy’s motion focused primarily on the fact that the appraisers had calculated the 

value of Calais based on a piecemeal sale of the company’s assets, rather than on a sale 

of the entire company as a going concern. She contended that the value of Calais in a 

sale of the entire company as a going concern would have resulted in a much higher “fair 

value” for the company, and that the appraisers were therefore required to take this 

approach because they were required to choose the valuation method that achieved the 

“maximum return.” Ivy also asserted various other errors in the appraisers’ valuations. 

The superior court rejected Ivy’s arguments and accepted the appraisers’ 

report. Ivy moved for reconsideration, largely repeating the arguments she had already 

made and also requesting post-judgment interest. The superior court denied 

reconsideration and also denied her request for interest. 

Ivy now appeals, arguing that (1) the superior court improperly instructed 

the appraisers on remand; (2) the appraisers made substantive errors in their valuation; 

and (3) she is entitled to post-judgment interest. 

III. DISCUSSION 

A. The Appraisal Panel Was Properly Instructed. 

In Calais we remanded to the superior court to remand to the appraisal 

panel with “explicit instructions to calculate ‘fair value’ as defined by AS 10.06.630(a), 

the other terms of the Agreement, and this opinion.”7 Ivy argues that the superior court 

failed to comply with this mandate. We review de novo whether the superior court 

Id. at 420. 

-5- 7176 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

correctly applied our mandate on remand.8 For the reasons we are about to explain, Ivy’s 

argument is without merit. 

We remanded in Calais so that the superior court could correct the majority 

appraisers’ erroneous belief that “fair value” was synonymous with “fair market value.” 

The superior court did exactly that on remand, instructing the appraisers that “ ‘fair 

value’ is not synonymous with ‘fair market value’ ” and that “[t]he ‘fair market value’ 

of Calais’s assets is just one factor to be considered in determining the ‘fair value’ of 

Calais.” The superior court’s instructions also quoted AS 10.06.630(a), providing that 

“[t]he fair value shall be determined on the basis of the liquidation value, taking into 

account the possibility of sale of the entire business as a going concern in a liquidation.” 

Ivy, however, makes much of our requirement that the superior court issue 

“explicit instructions.” According to Ivy, this language meant that the superior court was 

required not only to instruct the appraisers to “calculate ‘fair value’ as defined by 

AS 10.06.630(a), the other terms of the Agreement, and [our] opinion [in Calais],” but 

also to provide detailed instructions on how to make this calculation, including, for 

example, “allow[ing] expert input fromtheparties regarding the precise manner in which 

to take into account capital gains taxes and costs of liquidation.”9 Most notably, Ivy 

argues that the superior court should have instructed the appraisal panel that “[s]ince 

Calais is a profitable corporation, you are required to determine the ‘fair value’ of Calais 

on a going concern basis.” (Emphasis added.) 

8 Moeller-Prokosch v. Prokosch, 53 P.3d 152, 154 (Alaska 2002) (quoting 

Williams v. Crawford, 47 P.3d 1077, 1079 (Alaska 2002)). 

9 Ivy also asks us to instruct the superior court to take over the appraisal 

process on remand. Because we uphold the panel’s appraisal, we need not consider that 

request. 

-6- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The detailed instructions requested by Ivy, however, would have violated 

the Agreement’s requirement that “the appraisers . . . exercise their expertise and 

judgment in their determination [of the fair value of Calais] . . . without input or 

communication from [the parties].” Furthermore, Ivy’s proposed instruction requiring 

the appraisers to calculate the fair value of Calais as a going concern would have been 

plainly inappropriate. As we noted in Calais, the Agreement specifically refers “to fair 

value under AS 10.06.630(a).”10 That statute provides that “[t]he fair value shall be 

determined on the basis of the liquidation value, taking into account the possibility of 

sale of the entire business as a going concern in a liquidation.”11 As a California court 

interpreting similar language has concluded, “liquidation value” means either the 

“valuation of the corporation as a going concern in liquidation or the piecemeal valuation 

of the company’s assets and liabilities as of the valuation date.”12 The Agreement did not 

specify which of these two valuation options the appraisers should use, and it therefore 

placed the task of choosing between these two options within the “expertise and 

judgment” of the appraisers. In other words, the Agreement required the appraisers to 

consider the possibility of a going concern sale, and then, if they concluded that such a 

sale was possible, to determine which of the two valuation options — a sale of the 

company as a going concern or a piecemeal valuation of the company’s assets — would 

return a higher value. Ivy’s proposed instruction would have made these determinations 

by judicial decree because it would have required the appraisers to use a going concern 

valuation as the basis for their “fair value” determination. That instruction was properly 

rejected by the superior court. 

10 Calais, 303 P.3d at 419. 

11 AS 10.06.630(a) (emphasis added). 

12 Trahan v. Trahan, 120 Cal. Rptr. 2d 814, 822 (Cal. App. 2002). 

-7- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

B.	 Ivy Has Not Shown Any Error In The Appraisal. 

Ivy also challenges the appraisal panel’s determination of the fair value of 

Calais. She argues that the appraisers failed to consider a sale of Calais as a going 

concern, that the appraisers’ report was inadequately detailed, and that the appraisers 

made various other errors in valuing the company’s assets and liabilities. For the reasons 

explained below, we reject Ivy’s arguments. 

1.	 Ivy has not shown that the appraisers failed to “tak[e] into 

account the possibility of sale of the entire business as a going 

concern.” 

As we have already discussed, the Agreement required the appraisers to 

determine the “fair value” of Calais “on the basis of the liquidation value, taking into 

account the possibility of sale of the entire business as a going concern.”13 Ivy argues 

that the appraisers failed to even consider the possibility of a sale of Calais as a going 

concern, that this failure demonstrates “a lack of understanding or completion of the 

contractually assigned task,”14 and that this court should therefore set aside the panel’s 

valuation.15 

13	 AS 10.06.630(a) (emphasis added). 

14 Calais, 303 P.3d at 416-17 (quoting Farmers Auto. Ins. Ass’n v.Union Pac. 

Ry. Co., 768 N.W.2d 596, 607 (Wis. 2009)). 

15 In this appeal, Ivy ostensibly asks us to reverse the appraisers’ award 

because the appraisers failed to understand or comply with the terms of the Agreement. 

This would raise a mixed question of fact and law: it requires us to determine (1) how 

the appraisers reached their valuation (a factual question) and (2) whether that process 

shows “a lack of understanding or completion of the contractually assigned task” (a legal 

question). But as we are about to explain, Ivy is actually asking us to determine whether 

the appraisers accurately valued Calais. We review de novo whether the Agreement 

permits judicial review of the accuracy of the appraisers’ award. Id. at 414. 

-8-	 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ivy’s argument rests on a factual assertion: that the appraisers did not, in 

fact, “tak[e] into account the possibility of a sale of the entire business as a going 

concern” during their deliberations. But rather than support this assertion with any direct 

evidence of the appraisers’ process, Ivy asks this court to make an inference. She argues 

that the appraisers were required to choose the valuation method — either a piecemeal 

sale of assets or a sale of the company as a going concern — that returned the highest fair 

value for the company. And according to Ivy, the value of Calais in a going concern sale 

is much more than the $54 million valuation reached by the appraisers.16 Therefore, Ivy 

reasons, the appraisers must have failed to consider the possibility of a going concern 

sale during their deliberations. 

As we explained in Calais, however, “[t]he court’s role [under the 

Agreement] is not to determine whether the third party [appraisers] accurately valued the 

item . . . but whether the [appraisers] understood and carried out the contractually 

assigned task.”17 Ivy’s argument ignores that distinction. She asks us to decide that the 

appraisers must have failed to “carr[y] out the contractually assigned task” because they 

reached (according to Ivy) an inaccurate valuation. To address this argument would 

require us to substitute our judgment for the judgment of the expert appraisers in order 

16 Ivy provides a number of reasons why she believes a going concern 

valuation would have resulted in a higher “fair value” for Calais, including lower taxes 

and transaction costs, efficiency advantages, and development opportunities. Most 

importantly, Ivy argues that a sale of the company as a going concern would not have 

subjected Calais to any corporate capital gains taxes. We note that while Calais may not 

be required to pay capital gains taxes on its properties in a sale of the company as a going 

concern, the United States Tax Court has held that the existence of built-in capital gains 

taxes on the company’s real estate holdings would reduce the price that a hypothetical 

willing buyer would pay for the company. See Davis v. Comm’r, 110 T.C. 530, 550 

(1998). 

17 Calais, 303 P.3d at 416 (quoting Farmers Auto Ins., 768 N.W.2d at 607). 

-9- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“to determine whether the third party [appraisers] accurately valued” Calais. We 

reaffirm our prior holding that the court’s role under the Agreement is not to determine 

whether theappraisers accurately valued thecompany,butonly whether they understood 

and completed the contractually assigned task.18 

We are careful, however, to limit our holding by noting that although 

apparent inaccuracies generally do not provide a direct basis for rejecting an appraisal 

panel’s valuation, they may entitle a party to discovery into the appraisal process. As the 

Wisconsin Supreme Court has noted, review of an appraisal award is “usually,” but not 

“always,” limited “to the face of the award.”19 This means that although mere 

“[u]nhappiness with the amount of an appraisal award is not enough to set it aside,” the 

amount of an award may be so facially suspicious that “fraud, bad faith, material mistake, 

or a lack of understanding of the process are reasonably implicated.”20 In such cases, “it 

is within [the superior court’s] discretion to allow further inquiry or discovery” into the 

appraisers’ process.21 We do not address whether further discovery would have been 

appropriate in this case because Ivy has not raised any discovery issues on appeal. 

2. The appraisers’ report was adequately detailed. 

Ivy next argues that the appraisers’ report failed to comply with the 

18 Though it is not necessary for our decision, we also note that letters from 

one of the appraisers show that the appraisers did consider the possibility of a going 

concern sale in the first appraisal and simply concluded that a piecemeal sale of assets 

would result in a higher fair value. This does not definitively prove that the appraisers 

considered the possibility of a going concern sale while conducting their second 

appraisal, but it does show that the appraisers were aware of this obligation. 

19 Farmers Auto Ins., 768 N.W.2d at 607 & n.17. 

20 Id. at 607-08. 

21 Id. at 608. 

-10- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

instructions issued by the superior court. The superior court’s instructions required that 

the appraisers “describe the reasoning behind the conclusion as to ‘fair value’ ” and 

“describe how the panel calculated the ‘fair market value’ of Calais’s assets and the 

calculation and treatment of capital gains tax liabilities and other liquidation expenses.” 

The superior court found that the appraisal panel’s report complied with these 

instructions. Because the superior court was in the best position to determine the 

meaning of the instructions it issued, we reviewits determination that the panel complied 

with those instructions for abuse of discretion.22 

We conclude that the superior court did not abuse its discretion in 

determining that the report issued by the appraisal panel complied with the court’s 

instructions to “describe the reasoning behind the conclusion as to ‘fair value.’ ” The 

report explained that each appraiser separately determined the fair market value of each 

of Calais’s properties, the estimated marketing costs and capital gains tax liability, and 

the value of Calais’s other assets and liabilities. The report then described how the 

appraisers combined their independent appraisals to reach a fair value of $54 million. 

We do not think anything else was required by the superior court’s instruction to 

“describe the reasoning behind the conclusion as to ‘fair value.’ ” We also note that 

nothing else was required by the Agreement itself, which only specified that “[u]pon 

completion of the appraisal process, the appraiser(s) shall be directed to prepare and 

deliver . . . a final report stating the appraised value of the fair value of Calais under the 

criteria set out in [the Agreement].” 

22 Cf. del Rosario v. Clare, 378 P.3d 380, 383-84 (Alaska 2016) (holding that 

this court reviews a superior court’s interpretation of its own order for abuse of discretion 

because “the court that entered the original order is in the best position to interpret its 

own order”). 

-11- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.	 Ivy did not preserve her other challenges to the panel’s 

valuation. 

Ivy makes a number of other challenges to the panel’s valuation, but most 

of those arguments were either not raised at all below,23 or else were raised only after Ivy 

filed her motion for reconsideration.24 An argument is ordinarily not preserved for 

appeal if it was not raised below,25 or if it was only raised after the party filed a motion 

for reconsideration.26 We therefore conclude that Ivy failed to preserve a number of her 

arguments for appeal, and we do not address them here. 

Ivy did raise one claim of error briefly below: that the appraisers erred in 

failing to account for Calais’s tax basis in its real estate properties when they calculated 

the “effective tax rate.” But Ivy’s initial motion papers objecting to the appraisers’ 

valuation totaled more than 50 pages, and she only raised the tax basis issue in a single 

cursory sentence. She included no citations to the record or to any relevant legal 

authority. To preserve an issue for appeal, the party must have “raised the issue below”27 

23 Specifically, Ivy’s arguments that the panel was not permitted to determine 

the market value for each piece of property by averaging the two closest appraisals of 

that property; that the appraisers used a “distress” sale valuation of Calais’s real 

properties; and that the appraisers “capitulated” to one appraiser’s view on capital gains 

taxes. 

24 Specifically, Ivy’s arguments that the appraisers valued only 39 of Calais’s 

41 properties and that the appraisers inaccurately calculated Calais’s cash assets. 

25	 Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). 

26 Wells v. Barile,358 P.3d 583,589n.17 (Alaska2015) (“[A]rguments raised 

for the first time on reconsideration are waived.”). We review de novo whether an 

argument was preserved. Mitchell v. Mitchell, 370 P.3d 1070, 1076 (Alaska 2016) 

(quoting State v. Jacob, 214 P.3d 353, 361 (Alaska 2009)). 

27 Stadnicky v. Southpark Terrace Homeowner’s Ass’n, Inc., 939 P.2d 403, 

(continued...) 

-12-	 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and specified her grounds for doing so.28 This preservation rule serves “important 

judicial policies: ensuring that there is ‘a ruling by the trial court that may be reviewed 

on appeal, . . . afford[ing] the trial court the opportunity to correct an alleged error,’ and 

creating a sufficient factual record so ‘that appellate courts do not decide issues of law 

in a factual vacuum.’ ”29 Here, we conclude that Ivy’s single sentence, lacking any 

factual support or legal authority, was insufficient to preserve her argument on appeal.30 

We need not address that argument further. 

C.	 Ivy Is Entitled To Post-Judgment Interest. 

Ivy’s final argument on appeal is that the superior court erroneously denied 

27 (...continued) 

405 (Alaska 1997). 

28	 Williams v. State, 629 P.2d 54, 62 (Alaska 1981). See also Alaska R. Civ. 

P. 77(b)(2) (requiring that motions include “a brief, complete written statement of the 

reasons in support of the motion, which shall include a memorandum of the points and 

authorities upon which the moving party will rely”). 

29 Johnson v. State, 328 P.3d 77, 82 (Alaska 2014) (alteration in original) 

(first quoting Alexander v. State, 611 P.2d 469, 478 (Alaska 1980); then quoting Pierce 

v. State, 261 P.3d 428, 433 (Alaska App. 2011)). 

30 We acknowledge that this preservation ruleis not absolute. Rather, we may 

consider new arguments on appeal if they either establish plain error or (1) do not 

“depend on new or controverted facts”; (2) are “closely related to the appellant’s 

arguments at trial”; and (3) could “have been gleaned from the pleadings.” Krossa v. All 

Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001) (quoting Arnett v. Baskous, 

856 P.2d 790, 791 n.1 (Alaska 1993)). None of Ivy’s unpreserved arguments establishes 

plain error or satisfies these three factors. In particular, we note that Ivy’s argument as 

to the tax basis turns on a controverted fact: whether the appraisers did or did not take 

Calais’s tax basis into account in determining the “fair value” of Calais. We also doubt 

that the tax basis argument is “closely related” to her other arguments below, or that it 

could have been “gleaned from the pleadings,” because Ivy admitted in her pleadings 

that any error in failing to account for the tax basis was “largely irrelevant” in light of her 

underlying argument that there should have been no deduction for capital gains taxes. 

-13-	 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

her post-judgment interest.31 Ivy received a “final judgment” in a July 6, 2010, order 

issued by the superior court. We reversed that order in Calais. 

32 Calais concedes that 

Ivy would have been entitled to post-judgment interest from the July 2010 order to the 

date of payment if this court had affirmed the original valuation by the appraisal panel. 

But Calais apparently believes that the July 2010 judgment is no longer the correct 

judgment fromwhichto calculate post-judgment interest after our reversal in Calais. We 

find Calais’s argument unpersuasive, and we therefore conclude that Ivy should be 

awarded post-judgment interest in this case. We do, however, agree with Calais on one 

important point: Ivy’s post-judgment interest award should be reduced by any dividends 

Ivy has received on her shares in Calais since the July 2010 judgment. 

1. Alaska Appellate Rule 509 applies here. 

Alaska Appellate Rule 509 provides the test for determining if postjudgment interest is calculated from an original judgment that is modified or reversed on 

appeal, or if it is instead calculated from the date of the new judgment. Rule 509 states 

that “[i]f in a civil case a judgment is modified or reversed with directions that a 

judgment for money be issued by the trial court, interest on the new judgment . . . shall 

be payable from the effective date of the prior judgment which was modified or 

31 When Ivy first raised the issue below, she asked for “interest” from 

“January 2010, to [the] date of final payment of her shares,” but did not specify whether 

this was pre- or post-judgment interest. On appeal Ivy has narrowed that request, asking 

only for interest from July 6, 2010, to the date of final payment, but referring to it 

specifically as “post-judgment interest.” We conclude that Ivy’s original request for 

“interest” from January 2010 to the final date of payment was sufficient to preserve her 

argument on appeal that she is entitled to post-judgment interest from July 2010 to the 

final date of payment. 

32 Calais Co. v. Ivy, 303 P.3d 410, 420 (Alaska 2013). 

-14- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reversed.”33 Since it is clear that our result in Calais was a reversal, the question is 

simply whether our directions on remand were “directions that a judgment for money be 

issued by the trial court.”34 

We conclude that they were. We have previously addressed this question 

in two other cases. In Brotherton v. Brotherton we found that a remand for “a 

clarification of the findings with regard to [a piece of] property, and any necessary 

adjustments to the distribution resulting from these issues” amounted to a reversal “with 

directions that a judgment for money be issued by the trial court” withing the meaning 

of Rule 509.35 We reached the same conclusion in Reust v. Alaska Petroleum 

Contractors, Inc.36 when considering a remand “for reduction of . . . lost wages awards 

. . . , for application of the punitive damages cap . . . , and for review of the recalculated 

punitive damages award for excessiveness.”37 

Notably,weconcluded thatour remands in Brotherton and Reust fell within 

the scope of Rule 509 even though they required the superior court to conduct further 

fact finding or legal analysis. In Brotherton the superior court on remand was required 

33 Alaska R. App. P. 509 (emphasis added). 

34 We review a superior court’s interpretation of the Alaska Appellate Rules 

de novo. Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026 

(Alaska 2009). 

35 Brotherton v. Brotherton (Brotherton II), 142 P.3d 1187, 1192 (Alaska 

2006) (quoting Brotherton v. Brotherton (Brotherton I), 941 P.2d 1241, 1248 (Alaska 

1997)). 

36 Reust v. Alaska Petroleum Contractors, Inc. (Reust II), 206 P.3d 437, 441 

(Alaska 2009) (applying Rule 509 to remand in Reust v. Alaska Petroleum Contractors, 

Inc. (Reust I), 127 P.3d 807 (Alaska 2005)). 

37 Reust I, 127 P.3d at 826. 

-15- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

to make new factual findings as to whether a piece of property was marital or premarital 

property.38 In Reust the superior court was required to examine whether the new punitive 

damages award was “excessive.”39 

In this case, we reversed the superior court’s final order and remanded “to 

the superior court to remand to the panel with instructions to calculate the fair value of 

Calais as defined by AS 10.06.630(a), other terms of the Agreement, and this opinion.”40 

We acknowledge it was the appraisers, and not the superior court, who conducted 

additional fact-finding and analysis on remand, but we see no substantive distinction, at 

least for the sake of determining the application of Rule 509, between a remand for 

further fact-finding by the superior court and a remand for a new valuation by an 

appraisal panel. Because we conclude that our remand in Calais constituted a reversal 

with “directions that a judgment for money be issued by the trial court” under Rule 509, 

we also conclude that Ivy is entitled to post-judgment interest on the July 2010 order. 

2.	 Awarding Ivy post-judgment interest does not do an injustice to 

Calais, but the award should be lowered by the amount of 

dividends Ivy has received on her Calais shares since her final 

judgment. 

In addition to arguing that Appellate Rule 509 does not apply to this case, 

Calais argues that Ivy should be denied post-judgment interest on three alternative 

grounds. We will deny post-judgment interest “only when such an award would do an 

injustice.”41 For the reasons we are about to explain, we find Calais’s first two 

arguments unpersuasive, but we agree with Calais that the dividends Ivy has received on 

38 Brotherton II, 142 P.3d at 1188. 

39 Reust II, 206 P.3d at 438. 

40 Calais Co. v. Ivy, 303 P.3d 410, 420 (Alaska 2013). 

41 Farnsworth v. Steiner, 638 P.2d 181, 184-85 (Alaska 1981). 

-16-	 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

her shares in Calais since her final judgment should be subtracted from her postjudgment interest award. 

Calais’s first argument is that Ivy is not entitled to any interest because she 

was not entitled to receive any money until the panel returned an appraisal that complied 

with the Agreement. At first glance, this argument appears compelling. As we have 

previously stated, “[t]he real question in awarding interest . . . is whether the debtor has 

had use of money for a period of time when the creditor was actually entitled to it.”42 

Under the Agreement Calais was only required to pay Ivy for her shares “following 

receipt of the appraisal report described in Paragraph 5.” Paragraph 5 of the Agreement 

required the appraisers “to determine the fair value of Calais in accordance with this 

Settlement Agreement and AS 10.06.630(a).” As we explained in Calais, the first 

appraisal by the panel did not determine the “fair value” of Calais in accordance with 

AS 10.06.630(a), because it did not account for capital gains taxes and liquidation 

costs.43 Calais can thus reasonably assert that Ivy was not entitled to any money until the 

date of the second appraisal (October 31, 2014), because the appraisers did not return an 

appraisal “described in Paragraph 5” of the Agreement until that time. 

But “[w]e interpret settlement agreements as contracts,”44 and “[t]he 

objective of contract interpretation is to determine and enforce the reasonable 

expectations of the parties.”45 The expectation of the parties was that Ivy would be paid 

42 Id. at 184. 

43 Calais, 303 P.3d at 420. 

44 Id. at 414 (citing Chilkoot Lumber Co. v. Rainbow Glacier Seafoods, Inc., 

252 P.3d 1011, 1014 (Alaska 2011)). 

45 Id. at 418 (quoting Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 

(Alaska 2004)). 

-17- 7176
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

well within a year of the superior court’s approval of the Agreement. The Agreement 

provided that the three appraisers would be selected or appointed within 45 days of the 

execution of the Agreement. The appraisers were then to appraise the fair value of Calais 

“as promptly as is practicable,” and the parties agreed “not to nominate any appraiser 

who cannot commit to complete the work required by this Agreement within [120] days 

following their appointment or selection.” Calais was then required to pay Ivy within 

60 days of receiving the panel’s report. In total, the parties expected that Calais would 

pay Ivy within 225 days of the execution of the Agreement — i.e. by January 7, 2010. 

The parties did not expect six more years of litigation to resolve this dispute. Given 

these facts, we cannot say that awarding Ivy post-judgment interest beginning in July 

2010 would do an injustice. 

Calais next argues that Ivy is not entitled to post-judgment interest because 

Calais’s delay in payment was Ivy’s fault — specifically, because Ivy has refused to sign 

a letter authorizing the sale of Ivy’s shares while this appeal has been pending. But 

Alaska “view[s] interest on damage awards to be a form of compensation for the period 

that the plaintiff remains ‘less than whole,’ ” and we therefore “do not consider 

responsibility for a delay of payment as a factor in making an interest award.”46 As we 

have explained, “[f]or us to rule otherwise would amount to awarding [the appellee 

debtor] the free use of [the appellant creditor’s] money and also impose a ‘chilling effect’ 

upon a judgment creditor’s right to appeal an award he feels is not entirely adequate.”47 

Finally, Calais argues that an award of interest would be unfair because Ivy 

has received dividends from her shares in Calais throughout this litigation. According 

to an affidavit filed by Calais’s counsel, Ivy has received dividends totaling $447,500 

46 Farnsworth, 638 P.2d at 185. 

47 Id. 

-18­ 7176 
 

 

 

 

 

 

 

 

 

 

 

 

 

since she placed her shares in escrow. (This affidavit appears to be the only evidence of 

such payments, but Ivy has not disputed this fact on appeal.) If Ivy has, in fact, received 

any dividends since her July 2010 final judgment, we agree that it would be unfair for 

her to also receive the full amount of post-judgment interest. The purpose of interest is 

“compensation for the period that the plaintiff remains ‘less than whole.’ ”48 Making Ivy 

whole means contemplating the position she would be in if Calais had purchased her 

shares in July 2010. But if Calais had purchased Ivy’s shares in July 2010, Ivy would 

have stopped receiving dividends. Thus, making Ivy whole only requires awarding her 

the difference between the post-judgment interest and the dividends she has actually 

received since July 2010. 

IV. CONCLUSION 

For the reasons explained above, we AFFIRM the superior court’s 

enforcement of the settlement agreement but REVERSE the superior court’s denial of 

post-judgment interest. We REMAND for calculation of post-judgment interest minus 

the dividends Ivy has received. 

48 Id. 

-19- 7176