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Norville v. Carr-Gottstein Foods Co. (02/06/2004) sp-5778
Norville v. Carr-Gottstein Foods Co. (02/06/2004) sp-5778
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALLAN J. NORVILLE and KENAI )
PLAZA/CARR'S-SAFEWAY, L.L.C., )
) Supreme Court Nos. S-
10643/10684
Appellants/Cross- )
Appellees, )
) Superior Court No.
v. ) 3AN-01-8595 CI
)
CARR-GOTTSTEIN FOODS CO., ) O P I N I O N
)
Appellee/Cross- ) [No. 5778 - February 6,
2004]
Appellant. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: 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 Appellee/Cross-
Appellant.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
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: "[F]irst 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 Norville'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 Norville-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 1.1(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.1
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 ~>
."2 This would not seem to encompass a space leased
to a separate entity.3 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.4 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.5 It is not
reasonable for a landlord to deny consent in order to charge a
higher rent than he originally contracted for.6 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.' "[7]
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.8 Refusing to consent to a sublease because
gross sales, and thus percentage rents, will be impaired is
likewise a legitimate reason.9 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 Norville 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 1.1(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.10
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.11 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.12
Norville cited evidence that after Carrs was sold to Safeway,
Safeway requested the Labar 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.[13]
Interpretation of a contract is ordinarily a question of law.
But interpretation "becomes a task for the trier of fact when the
parties 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."14
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 justified. 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."15 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."16 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."17 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."18 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.
_______________________________
1Grants 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).
2Webster's Third New International Dictionary 604 (1968).
3In interpreting contracts, as well as statutes, "unless
otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning." State v. Niedemeyer, 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."
4Such a sublease could violate the tenant's duty under the lease
to use the space to maximize gross sales. See supra p. 5.
5Kendall v. Ernest Pestana, Inc., 709 P.2d 837, 845 (Cal. 1985).
6Id.
7Id. (quoting Ringwood Assocs. v. Jack's of Route 23, Inc., 379
A.2d 508, 512 (N.J. Super 1977)).
8See, e.g., Warmack v. Merchants Nat'l Bank of Ft. Smith, 612
S.W.2d 733, 735 (Ark. 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, 258 Cal. Rptr. 816, 819 (Cal. App. 6 Dist. 1989) (shopping
center landlord's refusal to consent to a sublease because
proposed subtenants sold products the landlord also sold held
reasonable).
9See, e.g., Newman v. Hinky Dinky Omaha_Lincoln, Inc., 512 N.W.2d
410 (Neb. App. 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, 601 N.E.2d 485, 489 (Mass. App. 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).
10Peterson 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.
11Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 447
(Alaska 2002).
12In one of the leases L.J. Carr signed as president of the
tenant, Carrs, and as general partner of the landlord.
13Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska
1996) (citations omitted).
14Little 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)).
15Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978). See
also, McGary v. Westlake Investors, 661 P.2d 971, 974 (Wash.
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., 658 A.2d 31, 35 (Vt. 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).
16Alaska Diversified Contractors, 778 P.2d at 583.
17Id.
18Id.
