text:
    2004 WY 68
    David Mark HOFFMAN, Appellant (Defendant), v. Marla Kim HOFFMAN, Appellee (Plaintiff).
    No. 03-133.
    Supreme Court of Wyoming.
    June 16, 2004.

      Representing-Appellant: Kenneth S. Cohen, Jackson, Wyoming.
    Representing-Appellee: Ronald G. Pretty, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] This is an appeal from the property division portion of a divorce decree. Finding no abuse of discretion, we affirm.

ISSUE

[¶ 2] Appellant presents only one issue:

Did the district court abuse its discretion in this case by allocating all of the parties’ business debts to the husband?

FACTS

[¶3] David Mark Hoffman (hereinafter “Husband”) and Marla Kim Hoffman (hereinafter “Wife”) met in 1998 and lived together in Kemmerer from January 1999 until the fall of 1999. At that time, Wife moved to Pinedale to work as a nurse. Husband was an engineer with P & M Mine in Kemmerer. The couple married in 2001. Husband promised Wife she would not have to work again so Wife quit her nursing job in Pinedale and moved to Kemmerer. There are no children of the marriage.

[¶ 4] Shortly after.the marriage, the couple decided to open an auto parts store. Wife did not really want to start the business but Husband talked her into it. Husband maintained his job at P & M Mine. Wife managed the auto parts store during the day, and Husband handled the business finances and helped run the store on weekends. The couple organized a corporation as the business entity for the auto parts store. Husband owned 51% of the corporate stock while Wife owned 49%. The original operating capital for the business came from a loan by Husband from his personal retirement account and further loans to the business. The auto parts store had financial trouble from the beginning. The business borrowed more money to continue operations. Husband was highly critical of Wife’s running of the business. Wife freely admits that she had no experience in running a business, and this was well-known to Husband before they opened the auto parts store.

[¶ 5] The marriage quickly broke down, and by early 2002, Wife decided she wanted a divorce. When Husband learned that Wife was planning to divorce him, he withdrew $30,000 from the business account and sent it to his brother so Wife could not access it. This cash withdrawal further intensified the financial troubles of the business. Business operations became even more difficult as the parties contested control of the business during the pendency of the divorce proceedings. Each party ended up taking money out of the business account to pay personal bills. Ultimately, before the divorce trial, the couple ended up selling the business for a loss estimated at between $150,000 and $175,000.

[¶ 6] At the divorce trial, evidence regarding the corporate finances was scant. There was no evidence that either party personally guaranteed any amount borrowed by the corporation or that any corporate debts were in any other way personal debts of Husband or Wife. The trial court specifically found that the debts testified to were debts of the corporation. Also regarding the corporation, there was some evidence that there were accounts receivable still outstanding.

[¶ 7] For purposes of allocating ownership of the corporation, the trial court found that Husband invested his personal finances in the business, exercised majority control over the business, and unilaterally withdrew a large majority of funds from the business accounts, increasing the financial stress on the business. In contrast, Wife contributed only sweat equity to the business. The trial court awarded all ownership interest in the corporation to Husband. The trial court also ordered that Husband be solely responsible for any personal indebtedness the parties may have with regard to any corporate debt.

[¶ 8] The trial court also awarded Husband the real property acquired by the parties during their marriage and the full amount of any marital accrual in his retirement benefits. The trial court split their personal credit card debts equally in half. The trial court approved the agreement of the parties concerning the division of then-personal property. Finally, the trial court ordered each party to bear their own attorneys’ fees and costs. Husband timely appealed.

DISCUSSION

Standard of Review

[¶ 9] The division of marital property is within the trial court’s sound discretion, and we will not disturb that division absent an- abuse of discretion. Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo.2000). We afford the trial court considerable discretion to form a distributive scheme appropriate to the peculiar circumstances - of each individual case, and we will not disturb such a scheme absent a showing that the trial court clearly abused its discretion. The division of property in a divorce case should not be disturbed except on clear grounds as the trial court is usually in a better position than the appellate court to judge the parties’ respective merits and needs. Metz v. Metz, 2003 WY 3, ¶ 6, 61 P.3d 383, ¶ 6 (Wyo.2003). The trial court is also in the best position to assess the witnesses’ credibility and weigh their testimony. Raymond v. Raymond, 956 P.2d 329, 332 (Wyo.1998). We, therefore, give considerable deference to its findings. Id. To the extent findings of fact are in question, we consider only the evidence of the successful party, ignore the evidence of the unsuccessful party, and grant the successful party every favorable inference that can be drawn from the record. Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, ¶ 8 (Wyo.2001).

- [¶ 10] The ultimate question in determining whether an abuse of discretion occurred is whether the trial court could reasonably conclude as it did. Metz, ¶ 6. An abuse of discretion occurs when the property disposition shocks the conscience of this Court and appears to be so unfair and inequitable that reasonable people cannot abide it. Davis v. Davis, 980 P.2d 322, 323 (Wyo.1999).

Property Division

[¶ 11] We begin by noting that Husband bears the burden of clearly demonstrating that the evidence adduced before the district court did not support the property division as a whole. Odegard v. Odegard, 69 P.3d 917, 921 (Wyo.2003). Husband only takes issue with the allocation of all business debts to him. Husband argues that the business and the debts associated with the business were the only property items subject to allocation by the trial court because Wife, during her testimony at the divorce trial, testified that she was not seeking any interest in the marital home or Husband’s retirement fund. Wife’s attorney, however, through trial examination, presented evidence regarding .these other assets and argued in closing that Wife expected the trial court to take these assets into account when allocating any personal debt.

[¶ 12] In fact, a trial court is obliged to take all marital property into account when deciding how ,to allocate marital property. A trial court divides marital property pursuant to Wyo. Stat. Ann. § 20-2-114 (LexisNexis 2003):

In granting a divorce, the court shall make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children.

A just and equitable distribution is as likely as not to be unequal. This Court evaluates whether the trial court’s property division is, in fact, equitable from the perspective of the overall distribution of marital assets and liabilities rather than from a narrow focus on the effects of any particular disposition. Carlton, 997 P.2d at 1032.

[¶ 13] The order from the trial court distributes all the marital assets at issue. Husband was awarded the real property and the entire amount of his retirement fund. Personal credit card debt was split equally in half. The trial court granted Husband exclusive ownership interest in the corporation. On appeal Husband argues that Wife was awarded the accounts receivable. Husband clearly does not understand the import of the order. The accounts receivable belong to the corporation. By awarding him exclusive ownership of the corporation, the trial court awarded Husband the accounts receivable. Finally, the trial court ordered the parties to bear their respective attorney’s fees and costs. Given the state of the record, we cannot say that the trial court abused its discretion in its distribution of the marital property.

[¶ 14] Husband makes no argument that the property distribution as a whole is inequitable. He only argues that he should not be solely responsible for the entire corporate debt. Even if we were to focus solely upon the corporation, Husband’s argument is still too narrow. Considering that the record reflects that starting the business was Husband’s idea, which Wife initially resisted, Husband invested his personal funds as capital for the business, Husband owned 51% of the stock of the corporation, and Husband’s withdrawal of cash from the business limited the operating success of the business, we fail to see any potential abuse of discretion by the trial court in awarding the corporation to Husband.

[¶ 15] To the extent Husband is focusing on debt, no evidence was presented that either Wife or Husband ever personally guaranteed any of the debts of the corporation. There was no evidence presented regarding any marital debt except for the personal credit cards. The trial court split responsibility for this debt equally between Husband and Wife. Perhaps Husband is upset because he is one of the creditors of the business and somehow thinks Wife should be responsible for his loss of investment in the business. This is not, however, an argument he presented either to this Court or the trial court. Suffice it to say that starting a small business is always a risk. Hopefully Husband understood the risk when he invested his personal money. Regardless, the only evidence presented was that Wife initially did not want to start a business and that her contribution was limited to sweat equity. Even if the issue had been before the trial court, allocating to Husband a loss on an investment of Husband’s personal funds as decided on and made by Husband would not constitute an abuse of discretion.

[¶ 16] In his final, desperate attempt to prove the trial court abused its discretion, Husband argues that Wife testified at the divorce trial that it would not be fair for Husband to be responsible for all the debts of the business. Husband argues that, because Wife must be considered a reasonable person, and she didn’t think it was fair, it must meet our standard for abuse of discretion that no reasonable person could abide by the result. Husband’s argument fails for several reasons. First, the record is unclear what the foundation or the context was for this comment by Wife. More importantly, it is the trial court that decides the equitable distribution of property. The trial court hears all the evidence, judges the credibility of the witnesses on all issues, and makes its determination regarding property distribution of all marital property after considering the statutory factors. Wife’s isolated comment is but one piece of the puzzle and is not definitive, for any purpose.

[¶ 17] Husband presents no argument adequately supporting, nor can we find based upon our review of the record, an abuse of discretion by the trial court in its distribution of the marital property in this case. Wife, in her brief, argues that Husband’s appeal lacks merit and this Court should impose sanctions against him pursuant to W.R.A.P. 10.05, which provides that this Court may sanction an appellant if it certifies that there was no reasonable cause for the appeal. Such sanctions are rare, and we cannot say that this appeal is so lacking in merit as to qualify for sanctions, especially since it challenged a discretionary decision by the trial court. See Wood v. Wood, 964 P.2d 1259, 1268 (Wyo.1998).

CONCLUSION

[¶ 18] The judgment of the trial court allocating the marital property of the parties is affirmed. Sanctions under W.R.A.P. 10.05 are denied.

      . Only the corporate assets such as the rights to the ongoing business and all inventory were sold. Husband and Wife remained the owners of the corporate stock, which included accounts receivable and accounts payable.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    ALASKA TRADEMARK SHELLFISH, LLC, and Gary Zaugg, Lance Pihlman, Stephen LaCroix, Ryan Morin, and Kurt Morin, Appellants, v. STATE of Alaska, Alaska Department of Fish and Game, Commissioner Frank Rue, Doug Mecum, Scott Marshall, and John Does 1-10, Appellees.
    No. S-10308.
    Supreme Court of Alaska.
    April 16, 2004.
    Rehearing Denied June 24, 2004.

      Bruce B. Weyhrauch, Juneau, for Appellants.
    Stephen LaCroix, pro se, Ketchikan.
    Blaine H. Hollis, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

This case requires us to determine whether Alaska law gives shellfish farmers the exclusive right to harvest wild stocks already growing on their farm sites. Several applicants asked the Alaska Department of Fish and Game for aquatic farm permits allowing them to grow and commercially harvest geo-duck clams in Alaska waters. When the Department of Fish and Game declined to give them exclusive rights to the wild geo-ducks on their proposed farm sites, the applicants appealed to the superior court. The superior court upheld the department’s decision, concluding that the Alaska Constitution bars the department from giving geoduek farmers exclusive rights to commercially har-vestable stocks already on their farms. The applicants filed this appeal. We affirm the superior court’s ruling but rest our decision on narrower grounds, holding that, no matter what the constitution might permit, the department lacked statutory authority to give aquatic farmers exclusive rights to the existing wild stocks. ■

II. FACTS AND PROCEEDINGS

■ Alaska’s Aquatic Farming Act sets out procedures for obtaining permits to start aquatic farms in Alaska waters. The act puts the Department of Fish and Game in charge of the permitting process, which includes the issuance of a coastal zone consistency certification, an aquatic farm lease, a special area permit, an aquatic farm operation permit, and a stock acquisition permit. In the case at issue here, Alaska Trademark Shellfish, LLC, applied to the Department of Fish and Game for aquatic farm permits to allow the company to raise geoducks — an unusually large, slow-growing species of clam that commands high market prices — on several proposed farm sites in Southeastern Alaska waters; at about the same time, several other applicants requested permits in various different locations. In prior communications with prospective shellfish farmers, the department had suggested that applicants who received permits would be given the right to take all wild stocks already on their farms when the permits were issued. Thus, in the present case, most of the applicants proposed to harvest and sell the wild geoducks already growing on their selected sites.

After reviewing the applications, the department notified the applicants that it would conditionally approve their permits: each applicant would be required to develop a practical method of distinguishing their farmed geoducks from the wild, “common property,” geoducks already on their property; and each applicant would have to agree to use their proposed method when they started farming. The department explained that it believed these conditions to be necessary “[bjeeause the density of geoducks on your site may exceed that necessary to provide seed stock for propagation.” Specifically, the department stated, “it is likely that a portion of the wild geoducks at your proposed sites would remain a common property resource, which should be made available for other uses.” The department asserted that the Aquatic Farming Act allowed aquatic farmers to take wild resources from their sites only if they were issued a stock acquisition permit under AS 16.40.120, which, in the department’s view, allowed farmers to use existing stocks solely to “further growth” and for “propagation.” According to the department, allowing aquatic farmers a broader right to harvest standing stocks might violate the Alaska Constitution:

It is important to clarify that an aquatic farm permit does not, in itself, give a farmer the exclusive right to harvest, for a commercial purpose, the wild fishery resources that are located at the farm site. A contrary conclusion is inconsistent with the laws that govern aquatic farming, and it may contradict the Alaska Constitution’s prohibition against exclusive rights in fisheries.

The applicants responded that they found the department’s conditions of approval to be unreasonable. They proposed several alternative arrangements. After holding a teleconference to discuss these and other options, the department sent the applicants a letter summarizing the general principles that it proposed to use to “guide the department’s actions on your pending permit applications.” For present purposes, the most important principle was that the department would permit the applicants to use existing geoducks only for brood stock or for active cultivation:

Pertinent statutes do not authorize a farmer to use standing, wild stocks of geo-ducks for harvest and sale without having first “propagated, farmed, or cultivated” the wild geoducks. The statutes define an “aquatic farm” as “a facility that grows, farms, or cultivates aquatic farm products in captivity under positive control.” It would not be consistent with those statutes to allow a farmer to harvest wild geoducks without first having done anything to improve their abundance, growth rate, or any other aspect of productivity. Therefore, tive department will issue stock acquisition permits only for the purposes of providing brood or seed stock or for growing-out under controlled, enhanced cultivation.

The applicants replied that the department’s proposal to condition approval of their applications on these principles would preclude them from operating successfully: They demanded an unconditional decision on their pending applications. In response, the Commissioner of Fish and Game issued a final decision denying the permits, ruling that the applicants had no right to claim wild geoducks already on their proposed sites:

The practical difficulties of choosing to operate an aquatic farm where there [is] an abundance of wild stocks of geoducks do[ ] not provide a basis for circumventing state law with regard to a common property resource. An aquatic farmer cannot, under state law, harvest wild geoducks that [the applicant] has done nothing to cultivate under the auspices of an aquatic farm permit. The Alaska Constitution and statutes that govern aquatic farm operational permits prohibit the harvest of standing stocks of wild geoducks, unless the farmer has a valid stock acquisition permit (which can be obtained under limited circumstances) or if the farmer has cultivated the wild geoducks.

The applicants appealed the commissioner’s decision to the superior court, insisting that the department had violated the Aquatic Farming Act by conditioning their farm operation permits on their willingness to make wild geoduck stocks available for common use. Alternatively, the applicants argued, the department should be estopped from prohibiting them from harvesting their standing stocks, since its earlier communications had promised that all successful applicants for shellfish farming permits would automatically receive the right to harvest wild stock.

Superior Court Judge Michael A. Thompson affirmed the commissioner’s ruling, relying on a constitutional theory. Finding that “[t]he real question ... is not whether the legislature intended to allow [stock acquisition permit] holders to harvest wild stock, but whether the legislature is permitted to do so,” Judge Thompson passed over the disputed statutory issues, ruling instead that the Alaska Constitution’s common use clause precluded the department from giving geo-duck farmers exclusive harvest rights to any commercially significant wild geoduck stocks.

The applicants appeal this decision.

III. DISCUSSION

A. Standard of Review

In resolving administrative appeals from decisions issued by the superior court as an intermediate appellate tribunal, we review the administrative agency’s decision directly. We apply our independent judgment to decide questions of law involving statutory and constitutional interpretation.

B. Parties’ Arguments

The applicants challenge the superior court’s ruling that the Alaska Constitution’s common-use clause forbids giving newly permitted geoduck farmers harvest rights to geoduck stocks already growing on their farms. They maintain that the superior court misunderstood the relationship between the Alaska Constitution’s common-use clause and no-exclusive-right clause. Pointing to cases like State v. Ostrosky, Owsichek v. State, CWC Fisheries v. Bunker, and McDowell v. State, the applicants insist that the common-use clause and public trust doctrine do not prevent the department from giving standing stocks to aquatic shellfish farmers. Alternatively, the applicants argue, estoppel bars the department from denying their applications.

The state counters by arguing that the court’s constitutional analysis was sound. Alternatively, renewing the statutory arguments that the superior court declined to decide, the state asserts that the Aquatic Farming Act does not give the department authority to grant exclusive standing-stock rights to the applicants.

C.Procedural Objections to a Decision on Statutory Grounds

The applicants raise a procedural objection to the state’s statutory argument. They maintain that the state cannot properly rely on this theory, since the superior court declined to decide it and since the theory is not raised in the applicant’s statement of points on appeal. The applicants urge us to confine our review to the constitutional issue decided below. Alternatively, they ask us to allow supplemental briefing if we reach the statutory issue.

But the trial court’s choice of a particular legal theory does not define the scope of our appellate review. An appellate court may uphold the trial court’s judgment on any legal theory supported by the record — even one that the trial court expressly rejects. Here, the state’s brief discusses a statutory point that it properly raised in the superior court. Both parties briefed and argued the point below. Although the superior court elected to rest its ruling on constitutional grounds, we have often recognized that appeals should ordinarily not be decided on constitutional grounds when narrower grounds are available. Given these circumstances, we reject the applicants’ procedural objections. We thus turn to the statutory issues.

D. Relevant Statutory Framework

The Aquatic Farming Act authorizes the Department of Fish and Game to issue permits for aquatic farming; conversely, the act prohibits aquatic farming except as permitted. The act authorizes the department to issue two distinct kinds of permits: permits to operate aquatic farms and permits to acquire stock for aquatic farms.

1. Operation Permits

Alaska Statute 16.40.100 describes the first kind of permit, an operation permit, providing; “A person may not, without a permit from the commissioner, construct or operate ... an aquatic farm.” An operation permit issued under this section allows aquatic farmers to acquire and sell “stock and aquatic farm products that are used or reared at the hatchery or aquatic farm.” The act assigns precise meanings to the terms “aquatic farm product” and “stock”:

“aquatic farm product” means an aquatic plant or shellfish, or part of an aquatic plant or shellfish, that is propagated, farmed, or cultivated in an aquatic farm and sold or offered for sale;
“stock” means live aquatic plants or shellfish acquired, collected, possessed, or intended for use by a hatchery or aquatic farm for the purpose of further growth or propagation.[]

In deciding whether to issue an operation permit under section .100, the department must consider four criteria:

(1) the physical and biological characteristics of the proposed farm or hatchery location must be suitable for the farming or the shellfish or aquatic plant proposed;
(2) the proposed farm or hatchery may not require significant alterations in traditional fisheries or other existing uses of fish and wildlife resources;
(3) the proposed farm or hatchery may not significantly affect fisheries, wildlife, or their habitats in an adverse manner; and
(4) the proposed farm or hatchery plans and staffing plans must demonstrate technical and operational feasibility.[]

2. Stock Acquisition Permits

Alaska Statute 16.40.120 describes the second kind of permit required for aquatic farming, an “aquatic stock acquisition” permit. Section .120 provides that “[a] person may not acquire aquatic plants or shellfish from wild stock in the state for the purpose of supplying stock to an aquatic farm or hatchery required to have a permit under AS 16.40.100 unless the person holds an acquisition permit.” An aquatic stock acquisition permit enables permit holders to acquire wild stock, but only “for the purposes of supplying stock ... to an aquatic farm or hatchery required to have [an operating] permit under AS 16.40.100 ... [or to] the department.” Any wild shellfish acquired under a stock acquisition permit “become the property of the permit holder and are no longer a public or common resource.”

E. Department’s Authority To Authorize Harvest of Wild Stocks

The state asserts that these statutes leave the department no authority to grant shellfish farmers a right to harvest and sell the wild geoducks already populating their farm sites. The state’s argument has merit.

The act describes only two ways for the department to give — and for aquatic farmers to receive — access to wild geoduck stocks: through an operation permit issued under AS 16.40.100 or through a stock acquisition permit issued under AS 16.40.120. If the applicants have any claim to the wild stocks on their proposed sites, then, their claims must arise under these provisions.

The operation permit statute, AS 16.40.100, neither states nor implies that a right to harvest and sell wild stocks arises from an operation permit. It allows farmers to acquire and sell aquatic farm products and stock only when the products or stock are “used or reared at the hatchery or aquatic farm.” By requiring all aquatic “farm products” and “stock” acquired or sold by an aquatic farm to be “used or reared at” the farm, this provision precludes harvesting un-farmed, wild geoduck stock for the purpose of sale. Similarly, no right to harvest wild geoducks for general commercial purposes emerges under the stock acquisition permit statute, AS 16.40.120. As we have seen, stock acquisition permits issued under this section only allow their holders to acquire wild stock for limited purposes: to supply stock to the department or to a licensed aquatic hatchery or farm.

In arguing their case before the department, the applicants proposed several theories for finding that a stock acquisition permit would authorize harvesting and selling the wild geoduek stocks on their sites. For example, pointing to the act’s definition of “stock,” which would only encompass geo-ducks that were “intended for use ... for ... further growth or propagation,” the applicants suggested that the wild geoducks they intended to harvest and sell would qualify as stock covered by their acquisition permits because the geodueks would undergo “further growth” between the time the permits were issued and the time the harvest and sale occurred. Yet by requiring stock to be “intended for use for further growth or propagation,” the statutory definition of “stock” demands something more than passive growth: its express terms command an intent to “use ” the wild stock “for ” further growth. These purposive words unmistakably signal an intended use that will produce growth through action — an active “use” of the stock by the farmer “for” promoting its further growth. A mere waiting period between issuance of a permit and commercial harvest would not meet this definition.

The applicants also claimed a right to harvest existing geoduck stocks under another provision of the stock acquisition permit statute, AS 16.40.120(f). This provision directs the department to issue a stock acquisition permit if “wild stock is necessary to meet the initial needs of farm or hatchery stock.” Contending that commercially harvesting wild stocks is necessary to make geoduck farming a viable enterprise, the applicants reasoned that subsection .120(f) would allow them to receive permits to harvest wild geo-duck stocks. Thus, in the applicants’ view, the department acted unlawfully in proposing' to condition their permits on their willingness to surrender existing geoduck stocks.

But this argument disregards the specific terms of AS 16.40.120(f). Subsection .120(f) authorizes the department to issue acquisition permits for wild stock when necessary to meet a farm’s “initial needs of farm ... stock.” Hence, this provision does not address a farm’s general startup needs; it only addresses a farm’s initial needs for “stock.” A “stock,” as discussed above, may only be used “for further growth or propagation.” Here the applicants’- proposal to harvest and sell wild geoducks from their sites and to plow their earnings back into their farms has no direct relation to their initial needs for farm stock.

Nor do the applicants’ arguments fare any better under the statutory provision governing operation permits, AS 16.40.100. As already explained in discussing the relevant statutory framework, an operation permit issued under section .100 does not generally authorize geoduck farmers to sell wild geo-duck stocks; instead, it only permits them to acquire or sell “stock” and “aquatic farm products” if they “are used or reared at the ... aquatic farm.” Although the applicants maintained below that their proposed harvest and sale of wild geoducks would amount to a “use” under subsection .100(b), their argument strains the statute’s plain meaning beyond plausible limits. Moreover, the argument disregards the need to interpret subsection .100(b)’s references to “stock” and “aquatic farm products” in light of AS 16.40.199’s provisions defining those terms: to qualify as salable “stock,” 'a wild geoduck would have to be “intended for use by [an] ... aquatic farm for the purpose of further growth or propagation”; and to qualify as “a farm product,” the geoduck would have to be “propagated, farmed, or cultivated in an aquatic farm.”

In short, no provision of the aquatic farming act empowers the department to grant— or entitles the holder of an operation or stock acquisition permit to claim- — exclusive rights to harvest and sell existing wild geoduek stocks. We thus conclude that the commissioner properly denied the disputed applications. Our reliance on this statutory ground makes it unnecessary to decide whether the Alaska Constitution would be violated by giving geoduck farmers exclusive rights to existing wild stocks.

F. Estoppel

A final point of equity remains to be considered. The applicants assert that the department should be estopped from denying them the exclusive right to harvest wild geoducks because it repeatedly assured them that they would acquire the right with their permits. Although the department vigorously disputes the applicants’ interpretation of its prior communications, we need not decide the dispute as to the meaning of the department’s statements. We have previously recognized that private parties may invoke estoppel against the state in certain exceptional cases. But when a party’s request for estoppel would require the government to take unlawful or otherwise unauthorized action, we have carefully restricted the defense’s use to circumstances in which the balance of equities manifestly favors the requesting party and estoppel is necessary to avoid further injustice. Considering the totality of the circumstances here, although the department’s prior representations have understandably caused considerable disappointment, we cannot say that the equities weigh heavily in the applicants’ favor; nor do we see any compelling need to invoke estoppel as a means to prevent waste or avoid injustice.

Thus, even assuming that the applicants reasonably interpreted the department’s pri- or representations as unequivocal promises, we conclude that the balance of the equities would fall well short of justifying an order compelling the state to issue permits for exclusive fishing rights that the legislature has not authorized it to grant.

IV. CONCLUSION

For these reasons, we AFFIRM the department’s decision denying the disputed applications for aquatic farming permits.

      . AS 16.40.100-.199.

      . The department eventually circulated these general principles as proposed regulations and ultimately adopted them. 5 Alaska Administrative Code (AAC) 41.240 (2003). The validity of the current regulations is not at issue here.

      . Alaska Const. art. VIII, § 3.

      . Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227, 1231 (Alaska 2003).

      . State Commercial Fisheries Entry Comm’n v. Carlson, 65 P.3d 851, 858 (Alaska 2003).

      . Alaska Const. art. VIII, §§ 3, 15.

      . 667 P.2d 1184 (Alaska 1983).

      . 763 P.2d 488 (Alaska 1988).

      . 755 P.2d 1115 (Alaska 1988).

      . 785 P.2d 1 (Alaska 1989).

      . As we held in Ransom v. Haner, one of our earliest cases,
      it is a rule of law that an appellee may urge, and the appellate court should consider in defense of a decree or judgment any matter appearing in the record, even if rejected below and even if appellee's argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.
      362 P.2d 282, 285 (Alaska 1961). Our subsequent cases have consistently recognized and applied this rule. See, e.g., Dixon v. Pouncy, 979 P.2d 520, 525 n. 6 (Alaska 1999); Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1295 (Alaska 1994); Municipality of Anchorage v. Higgins, 754 P.2d 745, 748 (Alaska 1988); McGee v. State, 614 P.2d 800, 806 n. 10 (Alaska 1980); Carlson v. State, 598 P.2d 969, 973 (Alaska 1979); Pistro v. State, 590 P.2d 884, 888 n. 13 (Alaska 1979); Stordahl v. Gov't Employees Ins. Co., 564 P.2d 63, 67 n. 16 (Alaska 1977).

      .This principle of abstention is not unique to Alaska. See Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) ("It is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-49, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (establishing that constitutional questions should be avoided if there are narrower grounds for making a decision). Alaska's appellate courts have often invoked this principle. See, e.g., Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 594 n. 18 (Alaska 1990) (civil rules constitute sufficient device for controlling discovery harassment, thus decline to reach broader constitutional issue); State v. F/V Baranof, 677 P.2d 1245, 1255 (Alaska 1984) (since owners were afforded due process, need not address constitutionality of statute); Zerbe v. State, 578 P.2d 597, 598 (Alaska 1978) (because of disposition of first point on appeal, need not address constitutional issue), overruled on other grounds by Stephens v. State, Dep't of Revenue, 746 P.2d 908 (Alaska 1987); Puller v. Municipality of Anchorage, 574 P.2d 1285, 1288 (Alaska 1978) (in light of construction of statute, do not reach constitutional issues); State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973) (interpretation of statute makes it unnecessary to reach constitutional issue), overruled on other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982); Anniskette v. State, 489 P.2d 1012, 1016 (Alaska 1971) (since conduct protected by constitution, do not reach broader question of statute’s constitutionality); Perry v. State, 429 P.2d 249, 251-52 (Alaska 1967) (should not pass on constitutional issue unless determination essential to decision of case); Robins v. Municipality of Anchorage, 711 P.2d 550, 552 (Alaska App.1985) (need not decide constitutional issue, since probable cause for arrest existed prior to giving breath test); State v. Williams, 653 P.2d 1067, 1069 (Alaska App.1982) (do not reach constitutional issue since case can be resolved by applying Alaska Rules of Criminal Procedure), aff'd in part, 681 P.2d 313 (Alaska 1984).

      . At the times relevant to this case, AS 16.40.100 provided:
      (a) A person may not, without a permit from the commissioner, construct or operate
      (1) an aquatic farm; or
      (2) a hatchery for the purpose of supplying aquatic plants or shellfish to an aquatic farm.
      (b) A permit issued under this section authorizes the permittee, subject to the conditions of AS 16.40.100-16.40.199 and AS 17.20, to acquire, purchase, offer to purchase, transfer, possess, sell, and offer to sell stock and aquatic farm products that are used or reared at the hatchery or aquatic farm. A person who holds a permit under this section may sell or offer to sell shellfish stock to the department or to an aquatic farm or related hatchery outside of the state.
      (c) The commissioner may attach conditions to a permit issued under this section that are necessary to protect natural fish and wildlife resources.
      (d) Notwithstanding other provisions of law, the commissioner may not issue a permit under this section for the farming of, or hatchery operations involving, Atlantic salmon.

      . See AS 16.40.100 and AS 16.40.120.

      . AS 16.40.100(a)(1).

      . See AS 16.40.100(b). Moreover, with respect to operating permits, AS 16.40.100(c) gives the department broad discretion to "attach conditions to a permit ... that are necessary to protect natural fish and wildlife resources."

      . AS 16.40.199(2), (8).

      . AS 16.40.105.

      . AS 16.40.120(a).

      . AS 16.40.120(b).

      . AS 16.40.120(g).

      . AS 16.40.100(b).

      . AS 16.40.120(b).

      . AS 16.40.199(8).

      . Id.

      . AS 16.40.199(2) and (8).

      . See, e.g., State v. Schnell, 8 P.3d 351, 356 (Alaska 2000); Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988).

      . Municipality of Anchorage v. Schneider, 685 P.2d 94, 98 (Alaska 1984) (reinstating otherwise unlawful building permit by estoppel against Municipality when warranted by strong equities and necessary to avoid injustice).

      . We find the applicants’ reliance on State v. Schnell unavailing, since our ruling there simply approved an application of estoppel to temper the state's otherwise lawful disciplinary action against a licensee. 8 P.3d at 356.

      .In reaching this conclusion, we note that the applicants have advanced no claims for narrower forms of equitable relief such as money damages tailored to compensate them for direct costs actually sustained as a result of their reliance on the department’s prior representations; they have demanded only the unqualified right to hold the state to its alleged promises to grant exclusive harvest rights.


author: PER CURIAM.

text:
    LEDGENDS, INC., d/b/a The Alaska Rock Gym, Appellant, v. Mary KERR, Appellee.
    No. S-10840.
    Supreme Court of Alaska.
    May 28, 2004.
    Richard A. Weinig, Pletcher & Weinig, Anchorage, for Appellant.
    Christine S. Schleuss, Friedman, Rubin & White, Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, FABE, and CARPENETI, Justices.
   OPINION

PER CURIAM.

Mary Kerr was injured at the Alaska Rock Gym when she dropped from a climbing wall onto a padded surface. According to her complaint the padded surface had been formed by several mats whose seams were overlaid by tape. The tape where she landed was weak or split and her foot penetrated into the seam. Her movement caused her to suffer a displaced, comminuted fracture of her right knee.

Kerr sued Ledgends, Inc., owner of the gym, contending that Ledgends had actual knowledge of the condition of the tape at the climbing wall and had negligently failed to maintain the premises in a reasonably safe condition. Ledgends answered denying knowledge and negligence and pled as an affirmative defense a release that Kerr had signed. The terms of the release are set out in Appendix B.

■ After depositions were taken both parties moved for summary judgment concerning the effect of the release. Superior Court Judge Sharon L. Gleason wrote an opinion denying both motions. Subsequently the parties agreed to a conditional settlement under which Ledgends confessed judgment in the principal amount of $150,000 subject to an appeal of the court’s order. The parties agreed that if this court

rules that the release bars Kerr!s claims based on the facts alleged in the complaint ... the case will terminate with each side to bear its own costs and fees. If the Court rules otherwise, including remand for any other purpose, payment upon the entire -confessed judgment is due and payable to [Kerr] within 30 days.

Ledgends now appeals.

Upon a careful review of the parties’ briefs and arguments, we conclude that the superi- or court properly denied Ledgends’ motion for summary judgment for the reasons expressed in the court’s opinion, attached as Appendix A.

The judgment of the superior court is AFFIRMED.

EASTAUGH, Justice, not participating.

APPENDIX A

IN THE SUPERIOR COURT FOR . THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

MARY KERR,

Plaintiff,

v.

LEDGENDS, INC. d/b/a ALASKA ROCK GYM,

Defendant.

Case No. 3AN-01-05350 Cl

ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT

In January 1999 Mary Kerr signed a “Release of Liability — Waiver of Claims” in partial consideration for permission to use the facilities at, the Alaska Rock Gym (the Gym), which is the principal place of business of Defendant Ledgends, Inc. In her complaint in this case, Ms. Kerr alleges that she was bouldering at the Gym on May 1, 2000. She alleges that she dropped straight down to the mats upon completing a bouldering sequence and that her .right foot slipped into a weak taped joint between mats causing her body to fall to the mat surface. Ms. Kerr alleges that she suffered a bone fracture at her right knee in the fall. She alleges that the Gym had known of the problems with the tape where she landed, but had not repaired it. Ms. Kerr claims that her injury was caused by the Gym’s negligent failure to maintain its premises in a reasonably safe condition for its climbing patrons. In answer -the Gym asserts assumption of the risk as an affirmative defense, contending that Ms. Kerr assumed the risk of injury by climbing at the gym and by signing the release of liability in January 1999. The parties have filed cross-motions for summary judgment on the issue of liability under the release Ms. Kerr signed in January 1999.

The Alaska Supreme Court established the rules of interpreting pre-recreational exculpatory agreements in Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991). Under Kissick any ambiguities in pre-recreational exculpatory clauses must be resolved against the party seeking exculpation. 816 P.2d at 191. Kissick established that “to be enforced the intent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.” 816 P.2d at 191. The Kissick court stated that an agreement purporting to exculpate the drafter from liability for negligence or tortious conduct is not effective unless the agreement is “clear, explicit and comprehensible in each of its essential details.” 816 P.2d at 191. Finally, Kissick requires that such an agreement, read as a whole, must “clearly notify the prospective releasor or indemnitor of the effect of signing the release.” 816 P.2d at 191 (citation omitted).

The agreement at issue in Kissick provided that flight passengers could not sue for “any loss, damage, or injury to [their] person or ... property which may occur from any cause whatsoever.” 816 P.2d at 189. When presented with the question whether that language precluded widows of passengers killed in an accident from bringing wrongful death claims, the Kissick court determined that because there was an ambiguity as to whether “injury” included death, the decedents’ agreement not to sue did not bar their widows’ wrongful death claims. 816 P.2d at 192.

Recently, in Moore v. Hartley Motors, 36 P.3d 628 (Alaska 2001), the Alaska Supreme Court interpreted a release signed by a participant in an ATV safety class, which purported to absolve the defendants from “any and all liability, loss, damage claim or cause of action, known or unknown, including but not limited to all bodily injuries and property damage arising out of the participation in the ATV Rider Course.” In reversing the entry of summary judgment against a participant injured when her vehicle hit a rock in high grass just off the course, the Moore court concluded that the release at issue purported to waive liability only for the inherent risks of ATV riding. The court determined that the release did not suggest “an intent to release [the defendants] from liability for acts of negligence unrelated to those inherent risks.” 36 P.3d at 633. Instead, the court found that “underlying the ATV course release signed by [the participant] was an implied and reasonable presumption that the course is not unreasonably dangerous.” The court then concluded that the injured rider’s allegation that the course was improperly laid out was actionable to the extent that she claimed the course was unreasonably dangerous because it posed risks beyond the ordinary risks of off-road ATV riding assumed by the release.

In the eases discussed above the exculpatory agreement was determined to be inadequate to preclude the plaintiffs’ claims. Those cases offer little guidance as to what language could effectively accomplish a waiver of liability for future language, but the cases demonstrate that under Alaska law pre-recreational exculpatory agreements have been held to a very high standard of clarity and that any ambiguity in that regal’d should be strictly construed against the party seeking exculpation.

In this case, the Gym contends that its release eliminates liability for injuries caused by negligence or by equipment defects. Ms. Kerr contends that the language of the release does not eliminate the Gym’s liability for its own negligence. She contends that the release warranted that the Gym would keep its premises reasonably safe and that the language in the release relating to negligence and defects does not clearly alert climbers that they are absolving the Gym from liability for anything more than the inherent risk of climbing. Finally, Ms. Kerr contends that liability for the gym negligently ignoring a known hazard is not unambiguously released.

The Gym argues that its release is clearer than the agreements that were at issue in the Alaska appellate cases discussed above. In so arguing, the Gym emphasizes the use of the word “negligence” in a portion of Paragraph 4 of the release, which reads:

By signing below, you certify and agree that:
you release the Alaska Rock Gym, its owners, operators, employees, or insurers from any liability arising from or related to the use of the Alaska Rock Gym by you or your guests, including any physical or mental injury, death, or property loss. This release means you waive any right to make a claim against or sue the Alaska Rock Gym or the other listed parties for any injury or loss of any kind, regardless of whether the injury was allegedly caused by the negligence of the Gym or its staff, other users of the Gym, a defect in the equipment, structures, building or parking lot, or any other cause.

Although Kissick quotes language from legal treatises suggesting that a drafter seeking to remove liability for negligence must do so clearly, “as by using the word ‘negligence’ itself,” 816 P.2d at 191, the use of the word “negligence” alone in Paragraph 4 of the Gym’s release does not definitively establish the scope of this release. Under Kissick, courts considering agreements that purport to release the drafter from liability for negligence must consider the agreement “as a whole.” 816 P.2d at 191. And the agreement as a whole must demonstrate a “conspicuous and unequivocally expressed intent to release from liability.” Moore, 36 P.3d at 632 (quoting Kissick, 816 P.2d at 191).

When read as a whole, the document Ms. Kerr signed does not clearly and unequivocally express an intent to release the Gym for liability for its own future negligence. Some portions of the document suggest the Gym’s intent to accomplish ends directly at odds with a complete waiver of the Gym’s liability for negligence. For example, Paragraphs 1 and 2 of the release signed by Ms. Kerr both emphasize the inherent risks of climbing and thus suggest that the document is intended to assure that customers are aware of the inherent risks of climbing over which the Gym, by definition, could have no control. Cf. Moore, 36 P.3d at 633 (defining inherent risks of sport as dangers that could not be eliminated through exercise of reasonable care). Paragraphs 2 and 3 of the release state that the Gym tries to make its facilities safe, to provide appropriate equipment and “to keep the equipment in good condition.” The release also suggests that customers make their own efforts to inspect the facility for themselves before climbing. The representations in the release regarding the Gym’s own efforts toward safety suggest that the release was predicated on a presumption that the Gym would strive to meet the standards of maintenance and safety mentioned in the release.

Read as a whole, the release does not conspicuously and unequivocally alert climbers that they are giving up claims against the Gym beyond those associated with the inherent risk of bouldering. The release does not clearly alert climbers that they are giving up any claims that the Gym failed to meet the standards of maintenance and safety that the Gym specifically indicates in the release that it will strive to achieve and upon which the release may have been predicated. Any ambiguity in this regard must be construed against the Gym as the drafter of a pre-recreational exculpatory contract seeking to avoid liability for negligence. Kissick, 816 P.2d at 191.

In this case, Ms. Kerr claims that the Gym failed to meet basic standards of maintenance and safety by failing to correct known hazards and thereby caused her knee injury. Because such a claim is not conspicuously and unequivocally precluded by the document read as a whole, this court concludes that Ms. Kerr is not barred by the release from bringing her claim and the Gym is not entitled to summary judgment on the issue of liability.

Entered at Anchorage, Alaska this 6th day of March, 2002.

/s/ Sharon L. Gleason Superior Court Judge

APPENDIX B

FOR USE BY ADULT GYM USER

Climber’s Name:_

RELEASE OF LIABILITY-WAIVER OF CLAIMS

1. Familiarize Yourself with the Alaska Rock Gym.

Climbing, exercising and other activities involve certain risks. It is very important that you look around the Alaska Rock Gym before you climb or exercise here so that you understand the nature of the Gym and the activities that happen here. Please feel free to visit the Gym anytime for a tour. Watch people climb. Our staff will be more than happy to show you around and answer any questions you may have.

2. Understand Any Risks.

The Alaska Rock Gym is a place for physical exercise, notably climbing, and there are risks inherent in any physical activity. These can range from things as simple as slipping on a floor or dropping a barbell to things as complicated as a failure of equipment or climbing structures or the inattention of another climber. While we try to make the Gym a safe place, it is ultimately up to you to understand the risks BEFORE engaging in any physical activity. Understand your own physical limits. If you have not been involved in a regular course of exercise, it is always a good idea to check with your doctor before beginning. Finally, the Alaska Rock Gym is a public place. Please safeguard your personal property. The Alaska Rock Gym cannot be liable for any loss or damage to personal property or possessions.

3. Use of Equipment and Rentals

The Alaska Rock Gym sells and rents equipment and other items, and it provides other equipment, such as ropes, carabiners, and exercise equipment, for the use of its customers. While we strive to provide appropriate equipment for people of all abilities and to keep the equipment in good condition, it remains to you, the user, to educate yourself as to the proper use of the equipment. Please ask any staff member if you have any questions. Inspect your equipment closely. The Alaska Rock Gym shall not be liable for any injuries, damages or loss resulting from any defect, visible or hidden, in any equipment sold, rented or provided by Alaska Rock Gym.

4.Release of Liability.

By signing below, you certify and agree that:

• there is no medical reason why you could not participate in activities at the Alaska Rock Gym;
• you have had full opportunity to inspect the Gym, and you understand the activities that are carried out here;
• you release the Alaska Rock Gym, its owners, operators, employees, or insurers from any liability arising from or related to the use of the Alaska Rock Gym by you or your guests, including any physical or mental injury, death or property loss. This release means you waive any right to make a claim against or sue the Alaska Rock Gym or the other listed parties for any injury or loss of any kind, regardless of whether the injury was allegedly caused by the negligence of the Gym or its staff, other users of the Gym, a defect in equipment, structures, building or parking lot, or any other cause.

THIS WAIVER OF CLAIMS IS GIVEN IN PARTIAL CONSIDERATION FOR PERMISSION TO USE THE ALASKA ROCK GYM, AND IT WILL CONTINUE TO APPLY DURING EACH VISIT TO THE ALASKA ROCK GYM IN THE FUTURE UNTIL YOU REVOKE IT IN WRITING.

I HAVE READ THIS RELEASE. I UNDERSTAND ITS CONTENT. I AGREE TO ITS TERMS.

Climber’s Signature

Date:_

      . Paragraph 1 begins: "Climbing, exercising, and other activities involve certain risks. It is very important that you look around the Alaska Rock Gym before you climb or exercise here so that you understand the nature of the Gym and the activities that happen here." Paragraph 2 begins by stating: "The Alaska Rock Gym is a place for physical exercise, notably climbing, and there are risks inherent in any physical activity. These can range from things as simple as slipping on a floor or dropping a barbell to things as complicated as a failure of equipment or climbing structures or the inattention of another climber.”