author: GOLDEN, Justice.

text:
    2004 WY 10
    In the Matter of the Worker’s Compensation Claim of: Christena PADILLA, Appellant (Employee/Claimant), v. The STATE of Wyoming, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION, Appellee (Objector/Defendant).
    No. 03-61.
    Supreme Court of Wyoming.
    Feb. 19, 2004.

      Representing Appellant: Dion J. Custis, Cheyenne, Wyoming.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; John W. Ren-neisen, Deputy Attorney General; Steve Czoschke, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] Christena Padilla appeals the denial of worker’s compensation benefits. We affirm.

ISSUE

[¶2] The Appellant presents the following issue for review:

Did the district court err as a matter of law in determining that Ms. Padilla was not eligible for permanent partial disability benefits, and past and future medical expenses pursuant to § 27-14-405 and § 27-14-^401, because she has not met her burden of proof to show that treatment, including surgery, for two herniated cervical discs was the result of her work-related injury?

FACTS

[¶ 3] Ms. Padilla has worked for Blue Cross-Blue Shield for over fourteen years as a microfilm technician. In July 2001, she saw her family doctor complaining of pain in her neck, radiating into her right shoulder and arm. Upon examination, Ms. Padilla was found to have two herniated cervical discs and surgical intervention was necessary. Ms. Padilla filed a claim for worker’s compensation, claiming that the herniated discs were the result of the repetitive motion activities required by her employment. The Workers’ Compensation Division (the Division) denied benefits because it claimed that Ms. Padilla’s injuries were not related to any work activity. Upon review, the Workers’ Compensation Medical Commission (the Medical Commission) determined that Ms. Padilla failed to carry her burden of proof that her injury was caused by work activity. The district court affirmed the decision of the Medical Commission.

STANDARD OF REVIEW

[¶ 4] Although the district court has already reviewed this ease, this Court affords no deference to the findings or decision of the district court. This Court reviews the case as if it had come here directly from the agency. Judicial review of an agency decision is guided by statute. Section 16-3-114(c) provides:

(e) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2003).

[¶ 5] When an appeal is from a contested case proceeding under the Wyoming Administrative Procedure Act in which both parties presented evidence and factual findings were made, this Court reviews the findings pursuant to § 16-3-114(c)(ii)(E). This Court reviews the entire record to determine if the decision of the agency is supported by substantial evidence. Substantial evidence is relevant evidence that a reasonable mind might accept in support of the agency’s conclusions. It is more than a scintilla of evidence.

[¶ 6] If this Court finds that the agency decision is supported by substantial evidence, then we further review the decision pursuant to § 16-3-114(c)(ii)(A). This Court examines the entire record to determine if the agency action was arbitrary or capricious. Under the umbrella of arbitrary and capricious actions would fall potential mistakes such as inconsistent or incomplete findings of fact or any violation of due process. An agency action will not be found to be arbitrary or capricious as long as there is some rational basis for the action. See Newman v. Wyo. Workers’ Safety and Comp. Din, 2002 WY 91, ¶¶ 7-24, 49 P.3d 163, ¶¶ 7-24 (Wyo.2002).

[¶ 7] At an administrative hearing, the claimant bears the burden of proving all essential elements of her claim by a preponderance of the evidence. This includes proving that her injury arose out of and in the course of employment. Whether an injury is work-related is a question of fact. This Court defers to the Medical Commission on issues concerning credibility and weight to be given conflicting evidence and. testimony. Newman, 1126; Ikenberry v. State ex rel. Wyoming Workers’ Compensation Div., 5 P.3d 799, 802 (Wyo.2000) (“The agency, as the trier of fact, is charged with weighing the evidence and determining the credibility of witnesses.”)

DISCUSSION

[¶ 8] The Medical Commission denied benefits because it determined that Ms. Padilla had not presented adequate evidence that her injury was related to her work duties. The evidence presented by Ms. Padilla was the testimony of two co-workers regarding Ms. Padilla’s work duties; Ms. Padilla’s testimony regarding her work duties and her injury; the deposition testimony of Ms. Padilla’s treating physician; and various medical records.

[¶ 9] With regard to Ms. Padilla’s work duties, the Medical Commission determined that her duties did not entail repetitive motion activities because she engaged in several different activities during the course of an average workday. Ms. Padilla, of course, believes that she did present sufficient evidence to support the repetitive nature of her various work activities. Because the determination of this particular issue is not decisive in this case, this Court will accept, for the sake of further argument, that Ms. Padilla’s employment duties include repetitive motion activities. The decisive issue is whether Ms. Padilla adequately linked her job activities to her injury, the herniated cervical discs.

[¶ 10] Ms. Padilla’s treating doctor opined “[i]t is quite clear in the medical literature that repetitive neck motions are frequently the cause of degenerative disc disease in the neck.” He then stated that based upon the history he had been given by Ms. Padilla, he related her injury to the repetitive motion activities of her work. During his deposition, he testified that “[t]here is ample medical literature that supports the fact that repetitive motion type injuries do result in degenerative changes in the neck and do, indeed, predispose individuals to degenerative problems and herniated discs in the cervical spine and the spine in general.” He further testified that the herniated cervical discs suffered by Ms. Padilla were consistent with fourteen years of employment involving the same, repetitive tasks. In offering this opinion, however, the doctor was referring to repetitive motion activities only in general terms. The doctor testified that he had no knowledge of what Ms. Padilla’s actual work activities entailed.

[¶ 11] In an apparent inconsistency, Ms. Padilla’s treating doctor strongly linked Ms. Padilla’s herniated cervical discs to a significant precipitating trauma. When asked if herniated discs can be caused by the natural aging process, the doctor responded:

Certainly they can. Generally speaking, there’s an incident which occurs which a person can pinpoint as being responsible for a herniated disc, particularly a disc as large as the one that she has. I would not expect to see, as part of normal, everyday wear-and-tear, discs this size, although it can occur, be it exceedingly — I think nearly unheard of to have that be the case.

While this testimony clearly rules out natural aging as a cause of Ms. Padilla’s herniated discs, it also seems to rule out repetitive motion. The same occurs when the doctor was asked if coughing could have caused Ms. Padilla’s herniated discs:

If you were to ask me whether or not I see patients who become symptomatic because of disc herniations as a result of bronchitis or coughing spells, I would tell you that of the several thousand patients that I’ve seen in my career, I’ve never seen more than maybe one person tell me that a cough or a sneeze herniated a disc.
In the same vein, I’ve seen a fairly large percentage of patients which have had work-related accidents or incidents occur in which they were straining or pulling on something that herniated a disc. So to answer your question, I think it is improbable that there’s a relationship between the two, but it’s possible.

Thus, not only did the doctor testify that herniated discs of the magnitude suffered by Ms. Padilla generally are caused by a precipitating traumatic event, he opined that the traumatic event generally would be something fairly significant, certainly more significant' than a cough or a sneeze.

[¶ 12] The doctor attempted to clarify his statement somewhat throughout his deposition. When asked if herniated discs the size of Ms. Padilla’s typically result only from substantial trauma, the doctor replied:

Not necessarily. My point is that generally discs that are that large result in symptoms that are fairly easy to trace back to a specific incident. In other words, I would expect a disc that size to result in pretty noticeable symptoms for a patient. That’s not to say that.it absolutely always has to be that way. Generally speaking, a disc which is that size will let a person know that it’s actually there, and they’ll be able to tell you when they began to feel the presence of that disc....

A little later when asked if this type of disc herniation could result without a significant precipitating traumatic event he testified:

To say that something could not happen is too strong of a statement. I would say very likely there should be an incident which occurs to cause a disc to herniate with this magnitude. That does not mean that you can’t herniate a disc like this coughing or sneezing or tripping over a crack in the sidewalk. These discs can herniate for various reasons. It’s more likely the case that some form of fairly significant trauma occurred to cause a disc to herniate to this magnitude.

[¶ 13] The only significant traumatic event related by Ms. Padilla happened in January 1998 when Ms. Padilla fell off a chair at work. Among other factors ruling out the fall as the precipitating event was her treating doctor’s deposition testimony that, although he could not say exactly how long the herniations had been present, he did testify that in his opinion they were no more than two years old. As reflected in the doctor’s notes and as testified to by Ms. Padilla at the hearing, Ms. Padilla stated that she began noticing the pain in late April 2001. In her hearing testimony, she specifically denied the occurrence of a precipitating traumatic incident. Instead, she related her pain to the repetitive motion activities of her work. She testified that the pain was present when she performed her employment tasks.

[¶ 14] Ms. Padilla presented no further testimony regarding the causation of her herniated cervical discs. The Medical Commission thus was presented with inconsistent evidence regarding causation. On the one hand, Ms. Padilla testified that she related her injury to the repetitive motion activities required by her employment. This testimony was supported by her treating doctor to the extent that he testified that her injury was consistent with long-term repetitive motion activities. On the other hand, Ms. Padilla’s treating doctor testified that he would almost always expect herniations the size of those suffered by Ms. Padilla to be the result of a significant, precipitating traumatic event. Ms. Padilla specifically denied being subject to any such traumatic event.

[¶ 15] Referring back to our standard of review, whether an injury is work-related is a question of fact. This Court must defer to the Medical Commission on issues concerning credibility and weight to be given conflicting evidence and testimony. Given the contradictory nature of the evidence presented by Ms. Padilla, this Court cannot say that the Medical Commission erred in determining that Ms. Padilla did not present sufficient, credible evidence to support a finding that the repetitive motion activities of her job were responsible for her herniated cervical discs.

CONCLUSION

[¶ 16] Ms. Padilla had the burden of presenting adequate evidence to relate her herniated cervical discs to her employment. Ms. Padilla and her treating doctor presented factually inconsistent testimony. Faced with this inconsistent testimony, the Medical Commission was justified in finding that Ms. Padilla had not carried her burden of proof.

The decision of the Medical Commission is affirmed.


source: Caselaw Access Project

author: FABE, Justice.

license: Public Domain

text:
    ALASKA ACTION CENTER, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. S-11252.
    Supreme Court of Alaska.
    Feb. 6, 2004.

      Valerie L. Brown, Trustees for Alaska, Anchorage, for Appellant.
    Joseph D. O’Connell, Assistant Municipal Attorney, and Frederick H. Boness, Municipal Attorney, Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, FABE, and CARPENETI, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

This expedited appeal concerns an initiative proposed by citizens of Girdwood, aimed at preserving much of the lower end of Gird-wood valley as a park. The land is currently owned by the Municipality of Anchorage and has been subject to extensive study and planning, much of it aimed at the development of a private golf course. The Anchorage municipal clerk rejected the initiative petition on the advice of the municipal attorney, who maintained that it would constitute an impermissible appropriation. Alaska Action Center (AAC) appeals the clerk’s decision, arguing that the clerk does not have the authority to reject the initiative petition on those grounds, and that in any event the decision to reject it was wrong because the initiative does not propose an appropriation. We affirm, holding that executive officers are empowered to review prospective initiatives to ensure that they comply with statutory and constitutional subject-matter restrictions and that the proposed Girdwood initiative was properly rejected because the designation of parkland would effect an appropriation. We further hold that the impermissible park designation should not be severed from the rest of the initiative because no other portion may be certified in its absence.

II. FACTS AND PROCEEDINGS

The Municipality of Anchorage owns several hundred undeveloped acres in the lower end of Girdwood valley. Through several rounds of study and planning, the Municipality identified a golf course as a potential use for the land, and attempted to lease 730 acres of the land to a private developer in 1997. This lease was found unlawful on a number of grounds, including that it failed to conform with Anchorage code provisions requiring leases to reflect the land’s market value. When the Municipality changed its ordinance to allow below-market leases, some Girdwood citizens launched a municipal initiative.

The proposed initiative would amend the Anchorage charter, adding Article XXII. Section 22.01 sets out a “Policy Statement,” expressing that the “eastern lower Girdwood valley is largely unsuitable for development and is best preserved in its natural state.” Section 22.02 dedicates as a park that specific land identified in Section 22.03 as the 730 acres subject to the flawed 1997 lease, “excluding such 61 acres located north of 60° 57' 5" North latitude that the Anchorage Planning and Zoning Commission and the Municipal Assembly may select for development for single-family dwellings and commercial development.” Section 22.03 also sets minimum lot sizes for the residential development and requires that any sales or leases be for fair market value. Sections 22.04 and. .05 limit development within the park to seven acres of campground and an .educational or recreational center,. the construction of hiking or cross-country skiing trails, and the maintenance of existing roads or rights-of-way. Section 22.06 bars any use of the park for a golf course or other golf-related uses. Finally, Section 22.07 is a severability clause.

The sponsors submitted their initiative petition to the municipal clerk for certification in accordance with Anchorage Municipal Code 2.05.050. The clerk refused to certify the petition, relying on an opinion letter from the municipal attorney, which advised that the petition was “legally insufficient” because it proposed an appropriation. AAC appealed the clerk’s action to the superior court, where both AAC and the Municipality moved for summary judgment. The superior court granted judgment to the Municipality, and AAC appealed to this court.

llí. DISCUSSION

A. Standard of Review

This court reviews a grant of sum: mary judgment de novo. The questions we address in this case — the authority of executive officers, the meaning of the constitutional term “appropriation,” and the severability of parts of the initiative — -are all questions of law. To these we apply our independent judgment, “adopting] the rule of law that is most persuasive in light of precedent, reason, and policy.”

B. A Municipal Clerk Has the Authority To Reject an Initiative on Subject-Matter Grounds.

By statute, the power of lawmaking by initiative on the local level is reserved to the people of a home rule municipality. Also by statute, this power may not be used to take any of the actions listed in article XI, section 7 of the Alaska Constitution. Under article XI, section 7, an initiative may not be used to “make or repeal appropriations.” The clerk of the Municipality of Anchorage refused to certify the initiative petition on the advice of the municipal attorney, who asserted in a brief opinion that if passed, the initiative would ' effect an appropriation. AAC challenges the clerk’s power to make this determination in the absence of clearly controlling precedent, claiming'that allowing an officer of the executive branch to keep an initiative off the ballot violates separation of power principles. A review of our cases dealing with the timing of initiative challenges shows that the clerk did not exceed her authority.

The constitutionality of an initiative may be reviewed either before it goes to the voters or after it is enacted. We have divided challenges into two categories to determine when review is proper. One type of challenge invokes “the particular constitutional and statutory provisions regulating initiatives.” The executive officer in charge of certifying initiatives — -in this case, the municipal clerk — has discretion to reject the measure if she determines it “violates any of the[se] liberally construed restrictions on initiatives,” and the courts may review the clerk’s decision right away. Separation of powers principles are not offended by this procedure, as these restrictions were devised to prevent certain questions from going before the electorate at all; an executive officer must play the gatekeeper role in the first instance. Other challenges are grounded in “general contentions that the provisions of an initiative are unconstitutional.” The executive officer may only reject the measure if “controlling authority” leaves no room for argument about its unconstitutionality. The initiative’s substance must be on the order of a proposal that would “mandat[e] local school segregation based on race” in violation of Brown v. Board of Education before the clerk may reject it on constitutional grounds. And absent controlling authority, the court should not decide this type of challenge until the initiative has been enacted by the voters.

The distinction between these two classes of initiative challenges is well illustrated by a comparison of the challenge we declined to address in Kodiak Island Borough v. Maho-ney with the one we reviewed in Brooks v. Wright. In Mahoney, the Kodiak municipal clerk rejected a proposed initiative that would have imposed term limits on the borough mayor, on the ground that such term limits would violate the Alaska Constitution. We held that the clerk’s decision was inappropriate in the absence of clearly controlling authority, and we did not reach the merits of the constitutionality of the term limits proposal. In Brooks, a group of citizens challenged a proposed initiative that would ban the use of snare traps on wolves; the suit was brought before the ballot measure went before the electorate. The challengers claimed that under article XII, section 11 of the Alaska Constitution, which allows “the law-making powers assigned to the legislature” to be exercised through the initiative process except when the initiative is “clearly inapplicable,” the snare trap ban could not be enacted by ballot measure. We addressed the merits of their complaint, finding that the measure could go to the voters.

The crucial difference between these two claims is in what they say is wrong with the initiative. In Mahoney, the clerk was assessing the substance of the proposed ordinance to determine whether it was unconstitutional. The validity of a term limits statute would not depend on whether it was enacted by initiative or by the legislature. It was the clerk’s contention that the underlying provisions of the initiative were unconstitutional, but this question could be decided only after enactment and was therefore beyond the clerk’s authority to review. On the other hand, the challenge that we considered in Brooks was the initiative opponents’ claim that the people’s law-making authority through the initiative process did not include the power to ban snare traps. Thus, the argument before us in Brooks went directly to the use of the initiative process itself to ban snare traps rather than to the propriety of the ban itself, even if passed by the legislature. As a challenge only to the use of the initiative process to enact the statute, not its substance, the Brooks appellees’ claim was based on the constitutional restrictions on initiatives. This challenge could be reviewed' — both by the executive branch and by the courts — before the election.

This review of our case law shows that subject-matter limitations on initiatives — that is, provisions that set out topics that may not be legislated by the ballot process — are among the grounds for pre-election review. The proscriptions of AS 29.26.100 and article XI, section 7 of the Alaska Constitution are such subject-matter restrictions. The Anchorage clerk was thus acting within her authority when she rejected the initiative on the ground that it would make an appropriation.

C. The Girdwood Initiative Proposes To Make an Appropriation.

The Anchorage clerk and the superior court determined that the Girdwood initiative would effect an appropriation and therefore was a barred use of the initiative power under AS 29.26.100 and article XI, section 7 of the Alaska Constitution. An initiative proposes to make an appropriation if it “would set aside a certain specified amount of money or property for a specific purpose or object in such a manner that it is executable, mandatory, and reasonably definite with no further legislative action.” Although appropriation is often understood to refer to money, an initiative setting aside land, or any other type of government property, may also be an appropriation. The same definition applies whether the initiative is municipal or statewide.

Our decisions reflect “two core objectives” of the limitation on using initiatives to make appropriations. First, the provision “prevents an electoral majority from bestowing state assets on itself.” This concern comes into play when the initiative would enact a give-away, forcing the state or a municipality to transfer assets into private hands, as with the land give-away in Thomas v. Bailey, the transfer of Municipal Light & Power to a private cooperative in Alaska Conservative Political Action Committee v. Municipality of Anchorage, or the realignment of fishery priorities in Pullen v. Ulmer. Neither party suggests that the Gird-wood initiative is a give-away.

Second, the limitation on initiatives “preserve[s] to the legislature the power to make decisions concerning the allocation of state assets.” This “ensure[s] that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs.” This concern is implicated in cases in which the initiative “designate[s] the use of state assets,” even if the assets remain in state ownership. The primary case demonstrating this aspect of the rule against appropriation by initiative is McAlpine v. University of Alaska. The initiative in that case proposed the creation of a community college system separate from the University of Alaska. It would have given the university two mandates: first, it required the university to give the community college system “such ... property as is necessary” for its operation. Second, it required that “[t]he amount of property transferred shall be commensurate” with property held by the former community college system on a certain date. The court held that the first requirement was not an appropriation because the university retained discretion to decide both the identity and the amount of property to give the community college system. But the second, which set a specific amount of property to be transferred, was held to be an impermissible appropriation because it would leave the university with only the discretion to “designate the precise articles or parcels to be transferred.”

The Girdwood initiative cannot be distinguished from the impermissible section of the initiative in McAlpine. In both cases, the initiatives “designate the use of’ specified amounts of public assets in a way that encroaches on the legislative branch’s exclusive “control over the allocation of state assets among competing needs.”

AAC attempts to distinguish McAlpine by noting that the initiative there would transfer the property irrevocably from one state agency, the university, to another — the university could do nothing to get it back. AAC maintains that the Girdwood property, by contrast, could not be transferred and could still be managed by the Anchorage Assembly. Although the initiative’s amendment of the Anchorage Municipal Charter would preclude the Assembly itself from altering the land’s status as a dedicated park, AAC notes that voters could revoke the dedication by a later initiative. But McAlpine did not rest its ruling on the fact that the initiative at issue there would have required a formal land transfer; the ruling focused on the fact that the initiative directed a specific amount of property to be used for a specified purpose.

Moreover, our cases establish that the prohibition against appropriating land by initiative in this manner is meant to “ret[ain] ... control of the appropriation process in the legislative body.” Here, by limiting the mechanism for future change to another initiative process, the initiative’s dedication requirement necessarily intrudes on the legislature’s control over future designation. The Girdwood initiative’s designation of a specific parcel of land as parkland cannot be distinguished from the designation in McAlpine. It intrudes on decisions reserved by statute and constitution to the assembly by making an appropriation. The Anchorage clerk was therefore correct to refuse to place the initiative on the ballot.

D. No Section of the Initiative May Be Certified.

The Anchorage clerk denied certification of the entire ballot measure, and the superior court affirmed. AAC argues that even if part of the initiative violates the prohibition on appropriations, that section should be severed and the rest of the measure should be allowed on the ballot. We exercise our power to sever an impermissible section of an initiative “circumspectly” and only when the following conditions are met: “(1) standing alone, the remainder of the proposed bill can be given legal effect; (2) deleting the impermissible portion would not substantially change the spirit of the measure; and (3) it is evident from the content of the measure and the circumstances surrounding its proposal that the sponsors and subscribers would prefer the measure to stand as altered, rather than to be invalidated in its entirety.” AAC identifies four aspects of the initiative that would not be eliminated by our decision that designating the tract as parkland is an appropriation: (1) the policy statement about the interests of the voters in having a park; (2) the sever-ability clause; (3) the requirement that the Municipality receive fair market value if it sells land “designated for commercial or residential use” in the initiative; and (4) the prohibition on using the land as a golf course.

The policy statement can be given no legal effect, and the severability clause only has any force if other sections of the initiative are saved. The sponsors of the initiative wanted a golf-free park in the lower Girdwood valley, but with the park designation severed, the measure would eliminate any golf use while leaving open the full range of options for other development of the land. The assembly may dispose of the land and designate it for any number of uses. The measure’s supporters have expressed a preference for a golf-free park over the land’s current status. But in view of many of the possibilities — high-density residential or commercial development, for example — we cannot assume that golf would never be the initiative sponsors’ preference when weighed against the other development options. We cannot allow the golf prohibition to go before the voters without the park designation.

The fair market value clause by its own terms applies only to the sixty-one acres designated by the initiative as open to residential and commercial development. The initiative states: “All land designated for commercial or residential use in this Section 22.03 may be sold or leased only for its fair market value_” Proposed section 22.03 allows the municipality to select sixty-one acres “for development for single-family dwellings and commercial development.” To apply the fair market value requirement to the whole 730 acres addressed by the initiative, we would have to overstep our narrow power of severance by substantially rewriting the measure. Reduced to prescribing the procedure for selling or leasing just sixty-one acres, the initiative bears little resemblance to the original proposal and should not appear on the ballot. Without any of the substantive sections of the initiative, the policy statement and severability clause have no legal effect and cannot go before the electorate.

IV. CONCLUSION

The Anchorage municipal clerk was acting within her authority when she rejected the Girdwood initiative on the ground that it proposed to make an appropriation. Furthermore, her determination was correct — by designating a particular tract of land as a park, the initiative would commit specific public assets to a specific purpose, making an appropriation, an action that may not be taken by initiative. Without the impermissible park designation, the rest of the initiative may not go to the voters. The judgment of the superior court is therefore AFFIRMED.

MATTHEWS and EASTAUGH, Justices, not participating.

      . Turnagain Arm Conservation League v. Municipality of Anchorage, No. 3AN-99-04120 (Alaska Super., February 6, 2001) (order granting summary judgment).

      . Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002).

      . Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996).

      . AS 29.26.100 ("The powers of initiative and referendum are reserved to the residents of municipalities ...."); see also AS 29.10.030(a) ("A home rule charter shall provide procedures for initiative and referendum.”).

      . See AS 29.26.100 ("The powers of initiative and referendum ... do not extend to matters restricted by art. XI, Sec. 7 of the state constitution.”); AS 29.10.030(c) (“A charter may not permit the initiative and referendum to be used for a purpose prohibited by art. XI, Sec. 7 of the state constitution.”).

      . Alaska Const, art. XI, § 7.

      . Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999) (citation omitted).

      . Kodiak Island Borough v. Mahoney, 71 P.3d 896, 900 (Alaska 2003); see also Boucher v. Engstrom, 528 P.2d 456, 460-61 (Alaska 1974) (holding that lieutenant governor's review of initiative’s "form" properly includes determination that it conforms with constitutional subject-matter restrictions), overruled in part on other grounds by McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).

      . Brooks, 971 P.2d at 1027.

      . See Boucher, 528 P.2d at 460.

      . Brooks, 971 P.2d at 1027 (citation omitted).

      . Mahoney, 71 P.3d at 900.

      . Id. at 900 n. 22 (citing Brown v. Board of Educ. Of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)).

      . Brooks, 971 P.2d at 1027.

      . 71 P.3d at 897.

      . Id. at 900-01.

      . 971 P.2d at 1026-27.

      . Id. at 1027-28.

      . See id. ("[0]ur [pre-election] review of the initiative ... is limited to whether the subject matter is constitutionally permissible.”) (emphasis added); Alaska Conservative Political Action Comm. v. Municipality of Anchorage, 745 P.2d 936, 937 (Alaska 1987); Boucher, 528 P.2d at 460-61; Walters v. Cease, 394 P.2d 670 (Alaska 1964), disapproved on other grounds by Boucher; see also Starr v. Hagglund, 374 P.2d 316 (Alaska 1962).

      . City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991). In other constitutional contexts, "appropriation” may have a different definition. For example, construing the initiative provisions of the constitution and construing the provisions delineating the governor’s veto power "require different interpretations of ‘appropriations' because they serve vastly different purposes.” Alaska Legislative Council ex rel. Alaska State Legislature v. Knowles,-P.3d-,-, 2004 WL 42610, at *2 (Alaska, January 9, 2004); see also City of Fairbanks, 818 P.2d at 1156-57 (reading "appropriation" more narrowly when considering whether measure repeals appropriation than when considering whether measure makes appropriation).

      . See Thomas v. Bailey, 595 P.2d 1 (Alaska 1979) (land); Pullen v. Ulmer, 923 P.2d 54, 63 (Alaska 1996) (wild salmon). These holdings dispense with AAC’s argument that the constitutional convention's initial use of the term "appropriation of funds” in a draft version of the provision — later changed to just "appropriation” — carries the meaning AAC ascribes to it. See also Thomas, 595 P.2d at 6-7 ("Even if the initiative provision referred to appropriations ‘of public funds,’ the issue would still be whether public funds refers generically to the state’s assets or only those assets in the form of money.").

      . For example, reviewing a municipal initiative in City of Fairbanlcs, we relied on the definition of appropriation set out in Thomas, a state-level initiative case. City of Fairbanks, 818 P.2d at 1156, citing Thomas, 595 P.2d at 7.

      . Pullen, 923 P.2d at 63.

      . Id.; see also City of Fairbanks v. Fairbanks Convention and Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991) (holding that initiative is not an appropriation where there is no "indication that ... the voters would be voting themselves money”).

      . 595 P.2d 1 (Alaska 1979).

      . 745 P.2d 936 (Alaska 1987).

      . 923 P.2d 54 (Alaska 1996).

      . Id. at 63.

      . Id. at 62.

      . McAlpine v. University of Alaska, 762 P.2d 81, 89 (Alaska 1988).

      . Id.

      . Id. at 87-88.

      . Id.

      . Id. St 91.

      . Id.

      . Id. at 89.

      . Pullen, 923 P.2d at 63.

      . See Anchorage Municipal Charter, § 18.01 (requiring voter approval for charter amendments).

      . City of Fairbanks, 818 P.2d at 1156 (emphasis added); see also Pullen, 923 P.2d at 62 ("The reason for prohibiting appropriations by initiative is to ensure that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs.”); McAlpine, 762 P.2d at 88-89.

      . Id. at 93.

      . Id. at 94-95.

        .See McAlpine, 762 P.2d at 95 n. 26 ("Where nearly all of an initiative is invalid, other courts have refused to put the remainder on the ballot regardless of the intent of the sponsors.”); Fossella v. Dinkins, 66 N.Y.2d 162, 495 N.Y.S.2d 352, 485 N.E.2d 1017, 1019 (1985) (refusing to allow initiative to go forward "in a redacted and possibly confusing form”).


author: MATTHEWS, Justice.

text:
    Allan J. NORVILLE and Kenai Plaza/Carr’s-Safeway, L.L.C., Appellants/Cross-Appellees, v. CARR-GOTTSTEIN FOODS CO., Appellee/Cross-Appellant.
    Nos. S-10643, S-10684.
    Supreme Court of Alaska.
    Feb. 6, 2004.

      Gregory A. Miller, Peter C. Nosek, Birch, Horton, Bittner, & Cherot, Anchorage, for Appellants/Cross-Appellees.
    William J. Evans, H. Ryan Fortson, Dorsey & Whitney LLP, Anchorage, for Appel-lee/Cross-Appellant.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

INTRODUCTION

The question presented is whether a landlord’s refusal to consent to a sublease was unreasonable. The superior court granted summary judgment in favor of the tenant on this issue. We conclude that this was error because there were genuine issues of material fact and the tenant was not entitled to judgment as a matter of law.

FACTS AND PROCEEDINGS

Allan Norville owns a shopping center in Kenai. Beginning in 1991, Carr-Gottstein Foods Co. (Carrs), leased space in the center under a twenty-five year lease. In 1995 Carrs asked Norville to consent to a sublease for a Bank of America branch. Article 13 of the lease required Carrs to seek Norville’s consent prior to subletting and provided that consent was not to be withheld unreasonably. Norville initially did not consent to the sublease. He explained:

I have not granted permission to proceed for currently I am discussing the possibility of locating a bank branch on one of the pads at the center. I have agreed with the prospective tenant that if a bank is located on the pad, the balance of the center would be restricted and no other bank will be located in the shopping center. The covenant would be similar to the covenant in our lease, wherein I am not allowed to place another food store on the site.

But a week later, after receiving a call from John Cairns, Carrs president, Norville consented. He stated that he did so for two reasons: “[Fjirst because [Cairns] is a personal friend ... and, second, the fact that Carrs had a large amount of long-term debt and the added cash flow would help the company.” In his letter granting consent Norville wrote that “the consent to allow the Bank of America branch shall in no way be construed as a waiver of our rights under the lease.”

Bank of America operated a branch bank in the center as a subtenant of Carrs until April of 1999. In early 1999 Safeway, Inc., purchased all the shares of Carrs and Carrs became a subsidiary of Safeway. Since all post-acquisition dealings between the parties involved Safeway employees, we refer to Carrs after the acquisition as “Safeway.”

In July 1999 Safeway wrote Norville requesting that he consent to a sublease to Alaska USA Federal Credit Union. The proposed area was the same space that had been previously occupied by Bank of America. Safeway’s property manager, Jeanese Riggs, contacted Norville to follow up on the request. According to Riggs, Norville “advised me that he would not consent to the sublease unless he was given a percentage of the sublease rent. He claimed he was entitled to this because his ability to negotiate with another bank to locate in his shopping plaza would be adversely impacted.”

In subsequent communications, Norville indicated that he would approve the sublease for seventy-five percent of the rent paid by Alaska USA, an amount just under $3,000 per month. According to Norville, he conditioned his consent upon receiving a portion of Alaska USA’s rent because he “was still planning to develop a bank on the bank pad of the center,” and he had “continued concerns that any other bank would be put off by an Alaska USA in-store bank ... competing with it in the same shopping center.” He stated that he “feared that the prior existence of the BofA branch office was one of the reasons why [he] still had no bank tenant, and that if [he] could find such a tenant the market rate [he] could charge would be diminished by the Alaska USA branch within Carrs.” He also stated that he was motivated in part by concerns that this was the first step in a series of subleases to which Safeway would “demand consent” in order to reduce its own operations in the center.

In September 1999 Safeway accepted Nor-ville’s terms under protest. Safeway made it clear that it believed that Norville did not have reasonable grounds for conditioning his approval of the sublease and stated, “we ... intend to pursue this matter....” Alaska USA began operating in the subleased space in August of 1999 and continues to do so.

In June 2001 Safeway sued Norville, alleging that his withholding of consent for the Alaska USA sublease was unreasonable and in violation of the lease. Safeway sought a declaration that Norville was required to consent to the sublease unconditionally and asked for judgment for the amount of the sublease rental paid to Norville.

After Norville answered and some discovery was conducted, Safeway moved for summary judgment. Safeway’s theory was that Norville had withheld consent to the sublease solely on the basis of the intended use of the space for banking. Safeway argued that under the lease it had the right to use its store for any services offered in similar stores, and that banking is one such service. Since that use was permitted under the lease, Safeway argued that it was unreasonable for Norville to withhold consent to the sublease.

In response, Norville argued that the reasonableness of his conditional consent was a question of fact. Norville also took issue with the contention that the lease permitted banking as a use. Finally, Norville argued that use was not the sole basis for his refusal.

After oral argument, the superior court granted summary judgment for Safeway. The final judgment entered required Norville to refund thirty-one monthly payments from the Alaska USA sublease, amounting to $91,930.50, plus interest, costs, and attorney’s fees.

Relevant lease provisions

As already indicated, the term of the Nor-ville-Carrs lease was twenty-five years. Approximately 70,992 square feet were leased. A minimum annual rent of $851,904 was specified, and a percentage rent was to be charged to the extent that it exceeded the minimum. The percentage rate was two percent for gross sales exceeding $40,000,000 to be reduced to one-and-a-half percent on gross sales exceeding $50,000,000. “Gross sales” do not encompass “minimum and base rents from subtenants.” The -tenant is required to “use, occupy, operate and conduct its business in the entire Demised Premises in such manner as to produce the maximum volume of Gross Sales.... ”

The two most important clauses to the resolution of this dispute are the “Tenant’s Use Clause” and the “Assignment or Subletting Clause.”

The Tenant’s Use Clause, section l.l(i) provides:

Tenant shall use the Demised Premises for the principal purpose of conducting thereon a general food supermarket including sales of deli-type foods for on-premises consumption, with the privilege of including in the Demised Premises a drugs and toiletries department, a notions department, a variety and soft goods department, a housewares and hardware department, a ready-to-wear clothing and accessory department, a prescription pharmacy, an automotive accessory and supply department, a floral department, a photo/sound/video department and a department or departments selling other items or offering such services compatible with the items or services offered by Tenant for sale in the foregoing enumerated departments and items sold and services offered from time to time in other general food supermarkets operated by Tenant or others. Tenant may also use the Demised Premises to the extent incidental to the uses described above, for the installation and use of one or more machines and/or devices which effect or facilitate the transfer, crediting and /or debiting of funds, the determination of account balances, the cashing of checks and/or any and all functions relating to such type of activities as may now or in the future be performed or facilitated by machines and/or devices. Tenant shall not use the Demised Premises for any other principal use or purpose without the prior written consent of Landlord.

The Assignment or Subletting Clause provides in relevant part:

13.1 Tenant expressly covenants that it will not assign this Lease or any interest therein, nor sublease or suffer or permit the Demised Premises or any part thereof to be used by others, without the prior written consent of Landlord in. each instance, which consent will not be withheld unreasonably....
13.4.... If Landlord shall consent to any particular assignment or subletting, such consent shall be deemed consent to that particular transaction only and not to any other or future transaction.

Contentions

On appeal both parties treat Norville’s consent to the Alaska USA sublease conditioned on receiving seventy-five percent of the rent paid by Alaska USA as equivalent to a refusal to consent to the sublease. We accept this characterization.

Norville argues' that whether his refusal to consent to the Alaska USA sublease was unreasonable is a question of fact that should not have been resolved by summary judgment. He contends that he withheld, consent for two reasons. The first was because of “his long-standing desire to find a full-service bank to lease a ‘bank pad’ in another part of the shopping center.” The second was related to rent receipts on Safeway’s premises. He points out that by subleasing to a bank the space used by the bank no longer contributes to gross sales and thus to rent calculated on a percentage basis. He contends that these reasons, considered either individually or collectively, justified his withholding of consent.

In response to' Norville’s first reason for withholding consent, Safeway argues that the motive to lease other space in the center to a bank is unreasonable as a matter of law because under the Tenant’s Use Clause it was entitled to use its premises for banking. Safeway stresses that Norville’s “objection was use. He did not want a bank in the supermarket. Since the use clause gives [Safeway] the right to put an in-store branch bank in the premises, Norville’s objection to Alaska USA was unreasonable as a matter of law.” According to Safeway, its allegation that Safeway is permitted under the use clause to install a branch bank also answers Norville’s argument that he withheld consent to the sublease because it would not contribute to gross sales: “Where the terms of the governing lease give [Safeway] the right to the activity, any disadvantage imposed on Norville is irrelevant. As just shown, in-store banks are included in [Safeway’s] right to offer ‘items sold and services offered from time to time in other general food supermarkets operated by tenant or others.’ ”

Norville, in turn, contests the claim that branch banking is a permitted use. He contends that specific language in the use clause permits only machine based banking activities and that this language controls the permission to engage in branch banking that might otherwise be found in the general language of the use clause.

DISCUSSION

One premise of Safeway’s argument is that under the lease Norville must consent to any sublease that is for a use that would be permitted under the Tenant’s Use Clause if conducted by Safeway. A second premise is that banking is a permitted use under the Tenant’s Use Clause. We believe, for the reasons that follow, that the first premise is incorrect as a matter of law, and the correctness of the second premise depends on unresolved extrinsic evidence.

Can the landlord object to a sublease for uses that would be permitted to the tenant?

We turn first to Safeway’s argument that Norville cannot object on the basis of use to a sublease for a use that would be permitted to Safeway. The language of the lease does not support Safeway’s contention. The subletting clause does not specify any limitation on the right of the landlord to withhold consent other than reasonableness. Further, the Tenant’s Use Clause limits permitted uses to those by “a department,” a term that in normal usage would not encompass a subtenant. The applicable language of the use clause, elided for ease of understanding, is as follows: “Tenant shall use the Demised Premises for the principal purpose of conducting thereon a general food supermarket ... with the privilege of including in the Demised Premises ... a department ... selling other items or offering ... items sold and services offered from time to time in other general food supermarkets.... ” The normal meaning of “department” used in this context is “a division of a store handling a distinct class of merchandise <the furniture "> <dry goods">.” This would not seem to encompass a space leased to a separate entity. The prohibition of subletting without consent, together with the Tenant’s Use Clause’s definition of permitted uses as those by “a department,” suggest that the lease does not erect a categorical rule barring the landlord from withholding consent on the basis of use to a proposed sublease that entails uses that would be permitted to the tenant.

Further, there are practical reasons why withholding consent in such circumstances might be reasonable. The scale of a tenant-operated department under the use clause might be expected to be smaller than the operations of a separate store. For example, the quantity of the hardware offerings found in a typical supermarket is much less than in a hardware store.

Why would scale make a difference to a landlord? One reason may be that the particular use in question is less remunerative in rent per square feet to the landlord than core supermarket uses. This would have an impact on percentage rents. The landlord, to use the hardware example, might be willing to tolerate the relatively small commitment in square feet to hardware sales that would be expected in a supermarket hardware department, but could reasonably object to the larger commitment of space necessary for a full-scale hardware store. Another reason might be that the landlord is seeking, to attract a store as a primary tenant in the same complex that would be in competition with the proposed subleasee. While the scale of the competition offered by sales from a department of the supermarket might not deter the prospective new tenant from taking space in the shopping center, the greater competition offered by a subleasee could well be a deterrent.

These examples parallel the reasons offered by Norville in opposition to summary judgment. Norville’s reasons — concerns about competition with a primary tenant and about the fact that the subleased space would not be contributing to gross sales for purposes of percentage rent calculations — -seem plausible. They are consistent with reasons found to be acceptable in a number of cases involving shopping centers.

In general, the standard is that a sublease may. be refused if doing so is commercially reasonable. It is not reasonable for a landlord to deny consent in order to charge a higher rent than he originally contracted for. A landlord’s

desire for a better bargain than contracted for has nothing to do with the permissible purposes of the restraint on alienation — to protect the lessor’s interest in the preservation of the property and the performance of the lease covenants. “ ‘[T]he clause is for the protection of the landlord in its ownership and operation of the particular property — not for its general economic protection.’ ”[]

Refusing to consent to a sublease because a proposed subtenant would compete with other businesses in the center and thereby potentially prejudice the landlord’s relationship with other tenants has been recognized as a permissible basis for withholding consent. Refusing to consent to a sublease because gross sales, and thus percentage rents, will be impaired is likewise a legitimate reason. Under the current lease, Norville’s interest in maximizing gross sales is recognized by an explicit covenant. Thus, Norville’s reasons for withholding consent are not impermissible under the lease’s explicit terms. Whether they are genuine and reasonable under the circumstances of this case are questions of fact that remain to be litigated.

Is general branch banking a permitted use?

Safeway argues that because many supermarkets contain banks, banking is a service “offered from time to time in other general food supermarkets” and thus is a permitted use under the first sentence of the Tenant’s Use Clause. Neither party contests that currently, as well as in 1990, many supermarkets contain branch banks. But Nor-ville argues that the second sentence of the use clause specifically addresses the only type of banking permitted under the lease. The second sentence provides;

Tenant may also use the Demised Premises to the extent incidental to the uses described above, for the installation and use of one or more machines and/or devices which effect or facilitate the transfer, crediting and/or debiting of funds, the determination of account balances, the cashing of checks and/or any and all functions relating to such type of activities as may now or in the future be performed or facilitated by machines and/or devices.

Norville argues that the language “the transfer, crediting and/or debiting of funds, the determination of account balances, the cashing of checks and/or any and all functions relating to such type of activities” refers to banking functions. He contends that because the only banking functions permitted under the lease are those that are performed by machines, the second sentence operates as a limitation on the type of banking permitted under the lease. Safeway counters that the second sentence is permissive rather than restrictive because it begins “[t]enant may also use.” Norville responds that the first sentence does not expressly mention banking and that, in context, the second sentence must be read as a limitation that excludes, by implication, banking functions not conducted by machines, otherwise it would have no meaning.

Norville also argues that relevant extrinsic evidence clarifies the meaning of the use clause. In opposition to Safeway’s motion for summary judgment, Norville filed a lengthy affidavit. The affidavit discusses the conversations leading to the execution of the lease in late 1990 between Norville and Michael Moxness, Carrs’ attorney. The affidavit states in relevant part:

One of the issues discussed with Mr. Moxness was the right to install in-store banking ATMs in the store.
In the development plan for the shopping center, various building pads were located on the periphery of the center. One of the pads was designated to be used for a future bank location, and accordingly in the negotiations I never consented to a bank being located in the Carrs Grocery Store.
During the course of negotiations various issues were discussed with Mr. Moxness concerning the uses that would be allowed in the center. The negotiations resulted in reaching the agreement as set forth in Paragraph l.l(i). Carrs was permitted to use the premises as a general food supermarket, and Carrs could install automatic teller machines (ATMs). The intent of the restriction was to allow me, as the developer, to place a full service bank on the bank pad designated for that development, and to allow Carrs to install only ATMs.

Norville’s affidavit may merely be referring to a subjective intent that was never expressed in discussions with Moxness. If so, it would not serve as relevant extrinsic evidence. Testimony of a party as to his subjective intentions concerning the meaning of a particular clause in a contract is not probative unless the party in some way expressed or manifested his understanding at the time of contract formation. But in reviewing grants of summary judgment we are required to view the evidence submitted in opposition to a motion for summary judgment in a light most favorable to the opponent, resolving all reasonable implications that can be drawn from such evidence in favor of the opponent. Viewed using this standard, Norville’s affidavit implies that the question whether Carrs would be allowed to place a full-service bank on its premises was discussed at the time the lease was entered into and the negotiating parties agreed that only ATMs and similar machines would be permitted. As so construed, the affidavit presents probative extrinsic evidence.

In response to Norville’s affidavit, Safeway filed an affidavit of Moxness. Moxness stated that he had no recollection of Norville requesting an exclusion for general banking and that he would not have granted such an exclusion. With reference to the Tenant’s Use Clause language relating to bank machines, Moxness stated:

I do not recall this language as being a compromise for excluding banks or financial institutions from the Tenant’s Use Clause. I believe the same ATM language was typically included in other Carrs lease agreements. Had such language been a compromise for the use of banks, it would have been highly unusual not to expressly include in the Retail Lease Agreement that banks were excluded from the Tenant’s Use Clause.

As independent supporting extrinsic evidence and in contradiction to Moxness’s affidavit, Norville offered evidence that identical use clauses were used in other 1990 leases between Carrs as tenant and Labar Co., a partnership in which the principal owners of Carrs were general partners, as landlord. Norville cited evidence that after Carrs was sold to Safeway, Safeway requested the La-bar Co. partnership to give its consent to a sublease to a bank, and this consent was denied. Norville argues that this is evidence that the principals of Carrs in 1990 intended the language of the-use clause to permit only ATMs and similar machines, not general banking..

The objective of contract interpretation is to determine and enforce the reasonable expectations of the parties.

In determining the intent of the parties the court looks to the written contract as well as extrinsic evidence regarding the parties’ intent at the time the contract was made. The parties’ expectations are assessed by examining the language used in the contract, case law interpreting similar language, and relevant extrinsic evidence, including the subsequent conduct of the parties.[]

Interpretation of a contract is ordinarily a question of law. But interpretation “becomes a task for the trier of fact when the pai’ties present extrinsic evidence to clarify a contract’s meaning, when this evidence points towards conflicting interpretations of the contract, and when the contract itself is reasonably susceptible of either meaning.”

In this case the Tenant’s Use Clause can reasonably be interpreted to allow only banking by machine. Norville’s affidavit concerning negotiations leading up to the lease is extrinsic evidence that supports this interpretation. The fact that this extrinsic evidence is refuted by Moxness’s affidavit does not mean that summary judgment was justi fled. Instead, the refutation merely means that there was a genuine issue of material fact as to what the extrinsic evidence meant.

The evidence regarding Carrs’ former principals’ refusal to allow Safeway to place a bank in another shopping center under identical lease language is not very detailed. It is possible that the landlords refused to consent to the proposed sublease on grounds different than those involved here. Thus, while the transaction may prove to be a source of relevant extrinsic evidence on remand, we are unable to say at this point that it has probative effect.

As noted, Norville argues that the specific language concerning banking functions in the second sentence of the Tenant’s Use Clause modifies the permission that might otherwise be inferred from the general language of the first sentence. This is a position with at least surface appeal. Since many supermarkets contained banks in 1990, the second sentence would seem to have little or no meaning unless it were intended to be a limitation. In contracts, as in statutes, “where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the- specific section will control over the general.” Here the two sentences can be harmonized if the first is understood not to cover banking. Or, if the first sentence is understood to include banking, the sentences can still be harmonized if the limitations of the second sentence are construed to apply to the permission to provide banking services granted in the first. But we have no occasion to rule on this argument at this time, for Norville did not move for partial summary judgment. If he had, it is possible Safeway would have been able to offer extrinsic evidence or arguments as to the meaning of the use clause that would contradict Norville’s interpretation.

Other arguments raised by Safeway

Safeway argues that the parol evidence rule precludes consideration of the extrinsic evidence offered by Norville. “The parol evidence rule is a rule of substantive law which holds that an integrated written contract may not be varied or contradicted by prior negotiations or agreements.” Three determinations have to be made before the parol evidence rule can be applied: “(1) whether the contract is integrated, (2) what the contract means, and (3) whether the prior agreement conflicts with the integrated agreement.” Here we can assume that the contract is integrated. The critical question is what the contract means. On this question extrinsic evidence is relevant. “Extrinsic evidence may always be received on the question of meaning.” Thus Safeway’s argument on this point lacks merit.

Safeway also argues that two other grounds preclude Norville from taking the position that he does concerning the meaning of the use clause. Safeway argues that the statute of frauds, AS 09.25.010(a)(1), and a lease estoppel certificate signed by Norville act as bars to Norville’s position. These arguments both lack merit for they assume that the lease clearly permits branch banking under the use clause, whereas the actual language, even without consideration of extrinsic evidence, leaves this question in substantial doubt.

CONCLUSION

For the above reasons the judgment of the superior court is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.

      . Grants of motions for summary judgment are reviewed de novo. They will be affirmed if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003). On review, all reasonable inferences of fact are drawn in favor of the nonmoving party. Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447 (Alaska 2002). Questions of contract interpretation are generally questions of law that will be reviewed de novo. However, fact questions are created when the meaning of contract language is dependent on conflicting extrinsic evidence. Alaska Diversified Contractors, Inc. v. Lower Kuskokwim School Dist., 778 P.2d 581, 584 (Alaska 1989).

      . Webster’s Third New International Dictionary 604 (1968).

      . In interpreting contracts, as well as statutes, "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” State v. Niedermeyer, 14 P.3d 264, 272 n. 38 (Alaska 2000) (citation omitted); Day v. A & G Constr. Co., 528 P.2d 440, 447 (Alaska 1974). See also Restatement (Second) of Contracts § 201 cmt. a: "Unless a different intention is shown, language is interpreted in accordance with its generally prevailing meaning. See § 202(3)." Section 202(3) provides "[u]nless a different intention is manifested, (a) where language has a generally prevailing meaning, it is interpreted in accordance with that meaning.”

      . Such a sublease could violate the tenant’s duty under the lease to use the space to maximize gross sales. See supra p. 999.

      . Kendall v. Ernest Pestana, Inc., 40 Cal.3d 488, 220 Cal.Rptr. 818, 709 P.2d 837, 845 (1985).

      . Id.

      . Id. (quoting Ringwood Assocs. v. Jack's of Route 23, Inc., 153 N.J.Super. 294, 379 A.2d 508, 512 (1977)).

      . See, e.g., Warmack v. Merchants Nat’l Bank of Ft. Smith, 272 Ark. 166, 612 S.W.2d 733, 735 (1981) (landlord’s desire to maintain a good "mix” of tenants held to be reasonable justification for withholding consent to a sublease which would have added a second bank to shopping center); Pay 'N Pak Stores, Inc. v. Superior Court, 210 Cal.App.3d 1404, 258 Cal.Rptr. 816, 819 (6 Dist.1989) (shopping center landlord's refusal to consent to a sublease because proposed subtenants sold products the landlord also sold held reasonable).

      . See, e.g., Newman v. Hinky Dinky Omaha-Lincoln, Inc., 2 Neb.App. 555, 512 N.W.2d 410 (1994) (landlord was reasonable in withholding consent to a sublease where the existing landlord-tenant agreement involved a percentage rent scheme); Worcester-Tatnuck Square CVS, Inc. v. Kaplan, 33 Mass.App.Ct. 499, 601 N.E.2d 485, 489 (1992) (landlord reasonably withheld consent to sublease where a percentage rent agreement was in place, even though the agreement could only be initiated if the tenant's sales exceeded a designated volume level, and such level had never been achieved); Haack v. Great Atl. & Pac. Tea Co., 603 S.W.2d 645, 652 (Mo.App.E.D.1980) (landlord’s refusal to consent to sublease because of percentage rent aspect of lease agreement held to be a reasonable exercise of business judgment).

        .Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981):
      Differences of opinion among the parties as to their subjective intent, expressed during the litigation, do not establish an issue of fact regarding the parties' reasonable expectations at the time they entered into the contract, since such self-serving statements are not considered to be probative. Rather, the court must look to the express manifestations of each party’s understanding of the contract in attempting to give effect to the intent behind the agreement.

      . Alakayak v. British Columbia Packers, Ltd.., 48 P.3d 432, 447 (Alaska 2002).

      . In one of the leases L.J. Carr signed as president of the tenant, Carrs, and as general partner of the landlord.

      . Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996) (citations omitted).

      . Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 23 (Alaska 1997) (citing Alaska Diversified Contractors, Inc. v. Lower Kuskokwim School Dist., 778 P.2d 581, 584 (Alaska 1989)).

      . Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978). See also, McGary v. Westlake Investors, 99 Wash.2d 280, 661 P.2d 971, 974 (1983) (en banc) (specific language of lease addendum must prevail over general terms of lease provision); Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 658 A.2d 31, 35 (1995) ("As a matter of contract construction, the specific controls the general."); In re Macmillan, 204 B.R. 378, 401 (Bkrtcy.S.D.N.Y.1997) ("Definitive, particularized contract language generally takes precedence over expressions of intent that are general, summary or preliminary.”); 5 Margaret N. Kniffin, Corbin On Contracts § 24.23, at 253-4 (1998).

      . Alaska Diversified Contractors, 778 P.2d at 583.

      . Id.

      . Id.


text:
    Hassan ZOK, Appellant, v. The ESTATE OF Richard B. COLLINS and Stephan B. Collins, as Personal Representative, Appellees.
    No. S-10604.
    Supreme Court of Alaska.
    Feb. 6, 2004.

      Steven D. Smith, Law Offices of Steven D. Smith, P.C., Anchorage, for Appellant.
    D. Scott Dattan, Law Offices of D. Scott Dattan, Anchorage, for Appellees.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FARE, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

A creditor of an insolvent estate objected to its closure on the ground that the deceased had made fraudulent transfers. Without deciding whether this claim merited further inquiry, the court ordered the estate closed. Since property transferred in fraud of creditors is potentially estate property, we conclude that it was error to close the estate without addressing the validity of the claim.

II. FACTS AND PROCEEDINGS

Hassan Zok sued attorney Richard B. Collins for malpractice in August of 1996. Zok was awarded over $200,000 in this case in February of 2002. Before the suit was filed but after allegedly receiving notice of Zok’s claim, Collins conveyed at least twenty-nine parcels of real property to the Collins Family Trust. He and his spouse, Anne-Marie, were co-trustees and Anne-Marie also signed the deeds as a grantor.

Collins died on April 15, 2000. A year later probate proceedings were opened and his son Stephan was appointed personal representative. Zok, acting without an attorney, filed a creditor’s claim in the probate proceedings that sought to set aside as fraudulent the conveyances to the Collins Family Trust.

At about the same time Zok sought to amend his complaint in the malpractice case to add a claim that fraudulent transfers had been made. This motion was denied. One ground for this ruling was that “denial of the motion will not deprive Mr. Zok of a remedy,” because “he has filed the same claim in the Collins estate probate action.”

In November 2001 Stephan Collins filed a final accounting. The final accounting referred to an inventory that had been filed a month earlier that indicated that Collins at the time of his death owned only $1,475 in personal property and no real property. No bank, brokerage, or IRA accounts that might be available to satisfy creditors under the non-probate transfer provisions of AS 13.33.215 were listed. The accounting set out Zok’s claim and two other creditors’ claims and noted that the total expenses of administration were over $19,000.

On December 11, 2001, notice of a hearing on the closing of the estate was issued. In relevant part the notice stated: “Any objections to the final accounting prepared by the Personal Representative or to the closing of the estate must be presented to the court at or before the time set for the hearing.” Zok promptly filed a written objection. He referred to the transfers to the trust as fraudulent and objected to closing the estate without consideration of this claim.

On March 6, 2002, the hearing on closing the estate was held. Zok, still without counsel, appeared and renewed his objection. He was allowed to examine Stephan Collins, but the scope of the examination was constrained. Zok sought to ask about the estate’s failure to respond to discovery concerning the trust in the malpractice case. He was not allowed to inquire on this subject. Zok sought to ask about Collins’s “life collections — from Africa, from art,” but was told by the standing master conducting the hearing that he could not do so since Stephan had testified that they did not exist. Zok mentioned twenty-nine parcels of property that had been conveyed to the trust, but the master indicated that this was a futile inquiry. At the conclusion of Zok’s examination the master ruled that the estate had been fully administered, that it was insolvent, and that it should be closed. The master stated that there was no issue concerning Zok’s fraudulent conveyance claims. According to the transcript, the master stated:

I would find that the estate has been fully administered, would specifically find as far as Mr. Zok’s claims that there is no issue concerning the trust. There is a provision concerning the trust in the will. But, based on the inventory that was filed with the court ... (tape ends abruptly).

Two days after the March 6 hearing, Zok hired counsel and Zok’s subsequent acts referred to here were taken through counsel. On March 18, 2002, Zok filed a renewed objection to the closing of the estate on the grounds that whether the transfer of Collins’s assets to the trust prior to his death should be set aside had not been adjudicated-At about the same time that this objection was filed, Zok also filed a separate civil action to set aside as fraudulent the challenged conveyances. On March 22 the master formally recommended that the estate be closed. Superior Court Judge Mark Rindner allowed Zok to file a written objection to this recommendation within ten days. Zok resubmitted the objection that he had previously submitted on March 18. The master, after reviewing the resubmission, again recommended that the estate be closed. Judge Rindner signed an order closing the estate on April 4, 2002.

On May 10, 2002, Zok moved for relief from the order closing the estate, again based on the unadjudieated fraudulent conveyance claim. Zok argued that he was not put' on notice that he was expected to prove his fraudulent conveyance claim by the notice of hearing. His memorandum in support of the motion states:

On December 11th the Estate scheduled a closing hearing and sent notice thereof to Mr. Zok_ Please note that the notice states only that objections to the closing of the Estate must be made at the hearing. There is no reference to any evidentiary hearing with regard to Mr. Zok’s claim that the Estate’s assets had been fraudulently conveyed to the “family trust.” Mr. Zok did object. He pointed out in both written and pleading form that he had found a record of 29 real property transfers into the trust by the decedent after he had notice of Zok’s claim. Mr. Zok advised the Master that he had in the other action [the malpractice action] sent interrogatories as to the other assets of the trust that the personal representative refused to answer. Mr. Zok also advised the court, as did the personal representative that none of the trust assets were included among the Estate’s inventory.... In fact the Estate’s position was that it was entitled to be closed because it was bankrupt, yet no disclosure was made as to what entity was paying the estate’s administrative fees or the attorney fees in the malpractice action.
The probate court did not address the fraudulent conveyance claim as it should have nor did it give Mr. Zok sufficient notice or opportunity to conduct a hearing on that issue.

On May 20, 2002, the standing master recommended denial of Zok’s motion for relief from the judgment. The master wrote: “Mr. Zok was advised on the record to state his objection to closing and present evidence. He reiterated his objection that he had an uncollected judgment. He presented no evidence when invited to do so.several times. The closing order should stand.”

Zok filed an objection to this recommendation that stated:

The gist of the Motion For Relief is that Mr. Zok, who was pro per, was unfairly surprised. The fact that he was invited “on record” to present evidence is at the heart of the problem. The notice of hearing he received of the date of-the hearing instructed him only to make his objections known. He had no adequate notice that he was supposed to be ready to try a fraudulent conveyance case at that hearing. He in fact stated when “invited to put on proof’ that he had not gotten responses to his previous discovery requests. It is a fundamental requirement of due process that one be given adequate notice and a meaningful opportunity to present one’s case.

On June 17, 2002, the superior court denied Zok’s motion for relief from the judgment.

Meanwhile, the estate had moved to dismiss Zok’s separate fraudulent conveyance action. Among the grounds for the motion was a claim that the order closing the probate estate was res judicata. Zok opposed the motion and sought to consolidate the case with the probate proceedings. The motion to dismiss was granted on June 3, 2002, and Zok’s consolidation motion was denied in the probate proceedings on June 17, 2002.

III. DISCUSSION

Zok now appeals in this, the probate proceeding. He claims that he was not given notice that his fraudulent conveyance claims were to be tried at the hearing concerning closing the estate and that it was error to close the estate before the claims were resolved. .

In reply, the estate claims that Zok had an opportunity to present his fraudulent conveyance claims at the March 6 hearing, that he failed to do so, and that therefore his claims are barred. The estate also argues that even if Collins had not made the real estate conveyances to the trust, the property would not have become property of the estate; instead it “would have passed to Anne-Marie directly by operation of law.”

Zok is correct that the notice of hearing that he received did not give him adequate notice that a trial of the fraudulent conveyance claim was contemplated. No reasonable person would have so concluded, since the notice only called for “objections to the final accounting prepared by the Personal Representative or to the closing of the estate,” and stated that such objections could be presented “at or before the time set for the hearing.” “Due process requires the ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ The purpose of this requirement is to allow ‘the aggrieved party the opportunity to present his case and have its merits fairly judged.’ ” Given the content of the notice, it is clear that these requirements have not been satisfied.

Further, the standing master’s conclusion in the May 20, 2002 recommendation that Zok presented “no evidence” is clearly erroneous. Zok presented a lengthy affidavit in which he explained that after he gave Collins notice that he was about to file a malpractice suit, Collins made extensive conveyances of property to a trust under circumstances suggesting that the conveyances were made without consideration. The affidavit also noted that despite the conveyance to the trust Collins retained control of the property as co-trustee. It was also clear that Collins died insolvent, excluding any interest he had in the trust and property that was subject to non-probate transfers at the time of his death. These circumstances amount to common “badges of fraud,” a term used to describe circumstantial factors that may justify a conclusion that a conveyance was made with an intent to defraud creditors. “We have recognized inadequate consideration, the insolvency of the debtor/transferor, and the transfer of assets in anticipation of a pending suit to be among the badges of fraud.” Thus Zok presented evidence that was at least suggestive that the conveyances were fraudulent.

It was error to close the estate without formally addressing and in some manner adjudicating Zok’s fraudulent conveyance claim. Under AS 13.16.385 only the personal representative may prosecute claims of fraudulent conveyance on behalf of unsecured creditors of the estate. Under this statute, Stephan Collins, as personal representative, may have a duty to proceed against his mother, as trustee, to set aside certain transfers to the trust. What the appropriate remedy might be if Stephan unreasonably or in bad faith refuses to undertake this duty has not been briefed. But before any decision can be made as to whether Stephan Collins should proceed to recover property, information should be developed as to the nature of the trust and the property transferred to it, including the time of each transfer and the character of Collins’s title to the property at the time of transfer. Given the relationship between the personal representative and the trustee, Zok should be given an opportunity to participate in reasonable discovery on these subjects.

As noted, the estate also contends that if the property transferred to the trust had not been so transferred it would not have become estate property, but would have passed to Anne-Marie Collins by operation of law. This contention cannot be decided on appeal for several reasons. We do not know the estate that Collins held in particular parcels prior to their transfer. Further, assuming that real property was held jointly in a tenancy by the entirety with a right of survivor-ship, we have not been directed to any authority concerning the rights of creditors to such property upon the death of a debtor/co-owner. Finally, the record does not purport to reflect comprehensively all of the property ' that was transferred by Collins to the trust, nor does it reflect property that may have been transferred outside of probate upon Collins’s death. The paucity of Collins’s estate suggests that there may have been such property. If so, creditors may have a right to it under AS 13.33.215(a). Thus, on this record, we are unable to conclude that any property transfers made by Collins before or as a result of his death are necessarily beyond the reach of the estate for the benefit of creditors.

We express no opinion as to the eventual outcome of this case on remand. What is required are orderly procedures with notice to all interested parties, that determine whether Collins had property that should be made available to creditors of the estate under applicable principles of Alaska law.

IV. CONCLUSION

REVERSED and REMANDED for further proceedings consistent with this opinion.

      . Zok v. Collins, 18 P.3d 39, 41 (Alaska 2001).

      . Zok v. Estate of Richard Collins, No. 3AN-96-6415 Civ. (Alaska Super., April 24, 2002).

      . In the separate fraudulent conveyance suit the following are the main allegations:
      5. Subsequent to receiving notice of the plaintiff's impending lawsuit the decedent Richard B. Collins, transferred substantially all his assets to himself and his wife, Anne-Marie Collins as trustees of the Collins Family Trust. Said transfer was fraudulent and done without adequate consideration in an effort to place the decedent's assets beyond the reach of plaintiff and perhaps other potential creditors.
      6. The trust was not registered although it was required to be registered pursuant to Alaska Statute 13.36.005. The exact extent of the assets transferred into the trust is unknown, however, over a two day period 29 quit claim deeds were recorded purporting to transfer various Alaskan parcels into the trust.

      . Matson v. State, Commercial Fisheries Entry Comm'n, 785 P.2d 1200, 1206 (Alaska 1990) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)).

      . Nerox Power Systems, Inc. v. M-B Contracting Co., 54 P.3d 791, 797 (Alaska 2002).

      . AS 13.16.385 provides:
      The property liable for the payment of unsecured debts of a decedent includes all property transferred by the decedent by any means which is in law void or voidable as against creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.

      . AS 13.33.216(b) provides that the provisions of our probate code relating to rights to multiple person accounts do not "affect the law governing tenancy by the entirety." But this does not answer the question as to the rights of estate creditors to real property so held.

      .AS 13.33.215(a) provides:
      If other assets of the estate are insufficient, a transfer resulting from a right of survivorship or POD designation under AS 13.33.201-13.33.227 is not effective against the estate of a deceased party to the extent needed to pay claims against the estate and statutory allowances to the surviving spouse and children.