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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yost v. State, Division of Corporations, Busniness and Professional Licensing (7/16/2010) sp-6495

Yost v. State, Division of Corporations, Busniness and Professional Licensing (7/16/2010) sp-6495, 234 P3d 1264

     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

ANN-MARIE YOST, M.D., )
) Supreme Court No. S- 13212
Appellant, )
) Superior Court No.
v. ) 3AN-07-04144 CI
)
STATE OF ALASKA, )
DEPARTMENT OF COMMERCE, )
COMMUNITY AND ECONOMIC )
DEVELOPMENT, DIVISION )
OF CORPORATIONS, BUSINESS )
AND PROFESSIONAL LICENSING, ) O P I N I O N
)
Appellee. ) No. 6495 - July 16, 2010
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Thomas  V.  Van  Flein,  Clapp,
          Peterson,  Van Flein, Tiemessen &  Thorsness,
          LLC,  Anchorage,  for Appellant.   Robert  C.
          Auth,  Assistant Attorney General, Anchorage,
          and  Wayne  Anthony  Ross, Attorney  General,
          Juneau, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  [Eastaugh,
          Justice, not participating.]

          CARPENETI, Chief Justice.




I.   INTRODUCTION
          A doctor encountered a problem with her medical license
application.  Rather than pursue the administrative  adjudication
process,  she  entered  into  a settlement  agreement  providing,
subject  to the approval of the medical board, that she would  be
issued  a  license, fined, and reprimanded.  The  doctor  asserts
that   the  professional  licensing  division  promised  her   an
opportunity  to address the Board before it considered  approving
the settlement and that this promise was a condition precedent to
the settlement.  The Division denies it made such a promise.  The
Board  changed the meeting time without notifying the doctor  and
voted  to  approve the settlement without hearing from  her.   In
response,  the doctor filed a civil case for breach of  contract.
The superior court converted the case to an administrative appeal
and  affirmed the Boards decision.  The doctor appealed.  We hold
that although the superior court properly treated the case as  an
administrative appeal, it was error to decide that  no  condition
precedent existed without first conducting a trial de novo on the
issue.   Therefore,  we vacate the superior courts  decision  and
remand for trial.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          1.   The application and settlement process
          1.   Dr. Ann-Marie Yost, a neurosurgeon, accepted a short-term
assignment  at the Alaska Native Medical Center1 and, in  January
2005,  applied  to the State of Alaska, Division of Corporations,
Business and Professional Licensing (the Division) for a  license
to  practice  medicine  in  the state.  The  license  application
included  question 32(a): Have you ever been under  investigation
by  any  medical licensing jurisdiction or authority?   Dr.  Yost
answered:  No.   In  fact,  as the Division  soon  became  aware,
Dr. Yost had five years earlier been the subject of an inquiry by
the Washington state Medical Quality Assurance Commission, set in
motion  by  a  patients complaint that Dr. Yost had  misdiagnosed
him.   On  March  31,  2005, Colin Matthews, a division  employee
assigned  to conduct investigations for the Alaska State  Medical
Board (the Board), was tasked with resolving the discrepancy.
          According  to  Dr. Yost, she answered  No  to  question
32(a) out of a good faith belief that the Washington inquiry  did
not  constitute an investigation for purposes of the application.
Dr.  Yost  said she understood the term investigation to  mean  a
formal proceeding with interviews, discovery, and a hearing, none
of  which  the Washington inquiry entailed.  Indeed, the entirety
of  the  Washington inquiry involved a letter sent  to  Dr.  Yost
informing  her of the patient complaint and asking  her  to  turn
over  relevant records and to write a statement about  the  case.
The  hospitals  legal  team handled all correspondence  and,  six
months later, the case was closed with a finding of no violations
and  no  need  for disciplinary action.  Dr. Yost considered  the
incident  a  nuisance complaint and stated that it did  not  even
come  to  mind  when  she reached question 32(a)  on  the  Alaska
medical license application.
          Investigator  Matthews  had a  different  view  of  the
incident.   He  understood that Washington had characterized  its
inquiry  into Dr. Yost as an investigation and that Dr. Yost  had
          been so notified.  The initial letter to Dr. Yost  return address
Investigations  Unit  informed her that this  was  a  preliminary
investigation, and that no charges have been issued in connection
with  this  investigation.  The final letter  Dr.  Yost  received
informed  her that the investigation was complete.  To  Matthews,
whether Dr. Yosts answer to question 32(a) was innocent oversight
or  intentional fraud was irrelevant; the answer was  false,  and
the  statute2  prohibiting false answers on license  applications
was  indifferent  to the reason.3  Faced with this  dilemma,  Dr.
Yost  could  have  allowed the application  process  to  run  its
course;  if  the  Board denied her application,  she  could  have
requested  a  hearing4  complete with  argument,  discovery,  and
testimony.5  If this was unsuccessful, she could have appealed to
the  superior  court,  and if necessary appealed  again  to  this
court.6   However, Dr. Yost was under a time constraint; her  job
with  theAlaska Native Medical Center was set to begin  the  next
day,  April  1, 2005, and neurosurgeons in Alaska are not  easily
replaceable.
          In  search  of a solution, Matthews consulted  a  board
member  who  offered the opinion that this case should  be  dealt
with  just  as similar cases had been handled in the  past:   Dr.
Yost  could enter into a memorandum of agreement (MOA)  by  which
she  would  be  granted a license, but the Board would  impose  a
$1,000  fine  and  a reprimand.  As soon as Dr. Yost  signed  the
draft  MOA, she could be issued a temporary license so she  could
begin  her job.  Then, if the Board adopted the MOA at  its  next
meeting,  a  permanent license would be issued and the  fine  and
reprimand would be imposed.  If the Board rejected the  MOA,  Dr.
Yost  would be back where she started, free to pursue the hearing
process.
          On  April 1, 2005, Dr. Yosts anticipated first  day  of
work,  Matthews  called her and explained the MOA  process,  then
spoke  by phone with Dr. Yosts attorney, David Thorner,  to  work
out  the  details.   When  an acceptable agreement  was  reached,
Matthews  faxed  a  copy of the proposed MOA  to  Thorner.   That
afternoon,   Dr. Yost came into the Division office,  signed  the
MOA, and was issued a temporary license.
          This  case  arises from a disagreement about what  else
happened that day.  Dr. Yost alleges that she signed the  MOA  on
the  express condition that before the agreement could be adopted
as  final,  she would have the opportunity to appear  before  her
peers  on  the medical board to explain directly her response  to
question 32(a), and ask that no action be taken against her.  She
alleges that Matthews, on behalf of the Division, orally promised
her  and  her attorney that she would have this opportunity,  and
that  this condition was fundamental to her participation in  the
MOA.   In  her  affidavit, Dr. Yost said that she  wholeheartedly
disagreed  with the allegations against her and would never  have
signed  the  [MOA]  without the assurance  made  by  Investigator
Matthews  that  I would have a chance to explain  myself  to  the
Board  at  the  meeting  where  the  draft  agreement  would   be
presented.  For its part, the Division acknowledges that Matthews
told  Dr.  Yost that the Boards meetings were open to the  public
and   offered  to  accommodate  her  request  to  listen  in   by
          teleconference, but the Division denies representing to Dr. Yost
or her attorney that she would have an opportunity to address the
Board, or even guaranteeing the time at which the matter would be
considered.
          The  disagreement about what exactly Dr. Yost had  been
promised would have major ramifications.  On April 21, 2005,  the
Board met to consider, among other things, whether Dr. Yosts  MOA
should  be adopted as final.  Dr. Yost and Thorner were  prepared
to telephone in to the meeting at 3:30 PM, the time they expected
the matter would be considered.7  The Board was running ahead  of
schedule,  however, and it reached the Dr. Yost matter  at  12:30
PM.   The  executive administrator of the Board, Leslie  Gallant,
advised  the  Board that Thorner wished to be on the phone  while
the matter was discussed but, despite several calls to his office
and  cell  phone,  Thorner could not be reached.   Then,  without
Thorner  or Dr. Yost on the line, the Board unanimously voted  to
adopt the MOA as final.
          The  next  day,  Thorner sent a  letter  to  the  Board
saying:
          Dr. Yost signed the [MOA] with  the
                    understanding  that   she
                    would  be  permitted   to
                    submit   mitigating   and
                    explanatory   information
                    to   the   Alaska   State
                    Medical  Board  on  April
                    21,  2005.  Subsequently,
                    Mr.   Matthews  confirmed
                    with  my office that  the
                    matter would be presented
                    to the Board at 3:30 .  .
                    . and that Dr. Yost and I
                    would  be  permitted   to
                    participate by telephone.

          Unfortunately,  the matter was  presented  at
          12:30  .  .  . when I was in a deposition  in
          another  matter, with my cell telephone  off.
          When  I got out of that deposition . . .  [I]
          learned  that  the hearing had already  taken
          place . . . .

          Unfortunately,  Dr.  Yost  was   denied   the
          opportunity of making her presentation to the
          Board.   The  purpose of this  letter  is  to
          request  that  this matter be placed  on  the
          docket   of   the  next  board  meeting   for
          reconsideration . . . .
               
Weeks  later, Thorner wrote again, but he did not receive a reply
to either letter.  Then, in a letter dated June 6, 2005, Dr. Yost
was  informed  that the case was now closed based on  the  Boards
April 21, 2005 approval of the [MOA] you signed on April 1, 2005.
            Dr.  Yost has not practiced medicine in Alaska  since
          her brief term at the Alaska Native Medical Center concluded in
May 2005.
          2.   Evidence concerning whether the Division made a promise to
               Dr. Yost
          Dr.  Yost and Thorner8 submitted affidavits saying that
Matthews orally promised Dr. Yost the opportunity to address  the
Board  before  the MOA could be adopted.  Matthews  submitted  an
affidavit saying he never made that promise.  Leslie Gallant, the
medical  board  executive administrator, submitted  an  affidavit
saying  she  spoke  with Dr. Yost in Matthewss  presence  at  the
Division  office after the MOA was signed and that  Matthews  did
not  make any promises to Dr. Yost at that time.  In addition  to
these conflicting affidavits, the parties support their positions
with competing selections from a cache of documentary evidence.
          In  a  cover  letter faxed to Thorner  along  with  the
proposed  MOA, Matthews wrote I will do my best to have  the  MOA
reviewed by the Board during the April 21, 2005 meeting, however,
as  I advised you this date, the agenda is already quite full and
that  may  not  be  possible.  Dr. Yost and you  could  certainly
attend the meeting either in person or telephonically.  After Dr.
Yost  signed the draft MOA, Matthewss detailed log notes  reflect
that  he  told her the MOA was on the April board meeting  agenda
for  4:30  PM April 21, 2005 [and] she could come to this  office
and  be  on the phone at the time the Board reviews the  MOA  and
that Mr. Thorner could also be on the line.  Next, Matthews wrote
I  have  spoken  with Atty Thorner and advised him  .  .  .  that
[Yosts]  appt  with the Board was for 4:30PM, (est) on  04.21.05,
that  I  had told Yost she could come to the office and we  could
hook  her  and Atty Thorner so they could be on line  when  board
reviews  the  MOA.  Finally, along with a confirmation  that  Dr.
Yosts  temporary  license  had  been  issued,  Matthews  faxed  a
handwritten note to Thorner which said Appt with Board 4:30  P.M.
(EST)  04.21.05.  In his deposition, Matthews read this to  mean:
[a]ppointment with board 4:30 p.m. estimated.  On April 13, 2005,
Matthews  sent  an email to Gallant informing her  of  the  phone
number  where Thorner could be reached during the board  meeting.
The  board  meeting agenda included this note: In the  Matter  of
Anne-Marie Yost, MD Call Attorney David Thorner.
          In  his  deposition, Matthews said I never, in  the  18
years I worked for the Division, told anyone they could go  to  a
board  meeting and present evidence, mitigating or otherwise.   I
routinely  said, You can attend the board meeting, but they  dont
necessarily  have  to talk to you.   He had no hesitation  saying
this, he explained, because thats not the format for it . .  .  .
If  the board wants to . . . ask you questions, they can do that.
But  I  never  guaranteed that anyone could  talk  to  the  board
because . . . thats not the way its done.  They dont do it.
          To  Dr.  Yost,  the  above evidence  demonstrates  that
everyone  knew it was part of the deal that she and her  attorney
would  have  an opportunity to address the Board before  the  MOA
could  be  finalized.  To the Division, the evidence  shows  that
while  it  tried to accommodate Dr. Yost and Thorners  desire  to
listen  in on the public meeting, it never guaranteed the  matter
would  be  considered at a specific time, let alone promised  Dr.
          Yost an opportunity to be heard.
          3.   The memorandum of agreement
          The document that Dr. Yost signed on April 1, 2005, and
the  Board  adopted  on  April 21, 2005, is  divided  into  three
sections: the Memorandum of Agreement, the Proposed Decision  and
Order,  and  the Order.  The Memorandum of Agreement provides  in
relevant part:
          2.  Admission/Jurisdiction. Yost  admits  and
          agrees  that the Board has jurisdiction  over
          the  subject matter of her license in  Alaska
          and over this Memorandum of Agreement (MOA).

          3.  Admission/Facts. Yost  admits  [that  she
          answered  No to question 32(b) when  in  fact
          she  had  been investigated by the  State  of
          Washington  and  that  this  is  grounds  for
          denial of her application.]

          5.  Waiver of Rights. Yost has consulted with
          an attorney . . . and understands she has the
          right  to  an administrative hearing  on  the
          facts  in  this  case.  She  understands  and
          agrees that by signing this agreement, she is
          waiving  her  rights to a hearing.   Further,
          she  understands  and  agrees  that  she   is
          relieving the Division of any burden  it  has
          of  proving the facts she admits above.  Yost
          further   understands  and  agrees  that   by
          signing this agreement she is voluntarily and
          knowingly giving up her right to present oral
          and documentary evidence, to present rebuttal
          evidence, to cross-examine witnesses  against
          her, and to appeal the Boards decision to the
          Superior Court.

          7.  Memorandum  of  Agreement,  Decision  and
          Order.  Yost  agrees that the Board  has  the
          authority to enter into this MOA and to issue
          the following Order.
          The  Proposed Decision and Order section provided  that
Dr.  Yost  would be issued a license subject to a civil fine  and
reprimand,   and   concluded:  this  Order  shall   take   effect
immediately  upon its adoption by the Board . .  .  .   Dr.  Yost
signed the document at the end of this section under the line  I,
Ann-Marie Yost, have read the MOA, understand it, and agree to be
bound  by  its terms and conditions.  Finally, the Order  section
consists  of one sentence indicating the Boards adoption  of  the
MOA.  The Order is signed only by the Board chairperson.
     B.   Proceedings
          A.   In January  2007 Dr. Yost filed a civil suit against the
Division  in superior court.  She asserted two causes of  action.
First,  Dr.  Yost  asserted  breach  of  contract  based  on  the
Divisions  failure  to  give her an opportunity  to  address  the
Board.  Second, Dr. Yost asserted that this failure entitled  her
to  a  declaration that the MOA was void.9  Her prayer for relief
included  requests  for  a declaration and  an  injunction.   Her
complaint did not seek money damages.
          The  Division  moved  for summary judgment  on  several
grounds,  including  that the complaint actually  constituted  an
untimely   administrative  appeal.   Dr.  Yost  opposed   summary
judgment  on  several  grounds, including  that  the  action  was
properly  brought  as  a  civil  contract  claim,  and   not   an
administrative  appeal,  because it collaterally  challenged  the
validity  of the contract between the Division and Dr.  Yost  and
not  the  Boards action pursuant to the contract.  Dr. Yost  also
moved  the  court to grant partial summary judgment finding  that
her  ability to appear before the Board was a condition precedent
to the MOA which the Division failed to fulfill.
          After  oral  argument, Superior Court Judge  Sharon  L.
Gleason   decided   to   convert  the  civil   action   into   an
administrative appeal, adopting the Divisions reasoning that  the
action  was  properly characterized as administrative because  it
essentially [sought] to set aside the Boards action that approved
the  memorandum of agreement.  The court noted that  while  under
normal  circumstances the administrative appeal would be untimely
appeals  from administrative agency decisions generally  must  be
taken  within 30 days10   here, the 30-day period never began  to
run  because  the  Division never gave Dr.  Yost  notice  of  the
deadline.11  The superior court certified as the only question on
appeal:  whether the Boards action should be invalidated  because
Dr.  Yost did not address the Board in person when the memorandum
of agreement was presented . . . .  In light of the conversion to
an  administrative appeal, the court vacated the  scheduled  jury
trial  and  denied most outstanding motions as moot.   The  court
essentially  denied the Divisions motion for summary judgment  as
moot12  and  deferred  ruling on Dr.  Yosts  motion  for  summary
judgment.13
          Both parties submitted appellate briefs in the superior
court.14   Dr. Yost argued that the Boards decision to adopt  the
MOA  without first giving her an opportunity to be heard was both
an abuse of discretion unsupported by substantial evidence15 and a
violation of the Divisions contractual obligation to let  her  be
heard.  Dr. Yost also argued that the Division breached its  duty
of   good   faith  by  submitting  a  report  to   the   National
Practitioners Data Bank16 which mischaracterized the action taken.
          The Division argued several grounds on which the Boards
action should be upheld, including (1) that the evidence did  not
support  the  existence of a promise to let Dr. Yost  speak;  (2)
that  substantial evidence supported the Boards adoption  of  the
MOA; and (3) that Dr. Yosts appeal was barred by the terms of the
MOA  itself.  To support their evidentiary arguments, the parties
drew  on the affidavits, depositions, and documents submitted  in
support  of  previous motion practice while the  case  was  still
classified as a civil suit.
          On  July  3,  2008, Judge Gleason issued  a  memorandum
decision affirming the Boards actions in full and dismissing  the
case.  The court held that the Boards adoption of the MOA was not
subject to a condition precedent, explaining that
          the  plain, unambiguous language of  the  MOA
          does  not include a condition precedent;  nor
          does  one  arise  by clear implication.   Dr.
          Yost received a temporary license to practice
          medicine when she signed the MOA .  .  .  and
          agreed then, without conditions, to be  bound
          by  its  terms.  The evidence that  Dr.  Yost
          points   to   in  support  of  her   position
          .  . . merely indicates that the Division and
          the  Board  would  permit Dr.  Yost  and  her
          attorney to be present at the Boards  meeting
          not  that their presence was required  before
          the  MOA  could  be  approved.  (Emphasis  in
          original.)
The  court also held that the content of the Boards report to the
NPDB  was not an abuse of discretion and was adequately supported
by Dr. Yosts admissions in the MOA.17
          Dr. Yost appeals.
III. STANDARD OF REVIEW
             The proper interpretation of contract language is  a
question of law which we review de novo.18  Whether a civil action
in  a  superior  court is properly converted to an administrative
appeal  is  a  question  of  law which we  decide  independently,
adopting the best rule in light of precedent, policy, and reason.19
We review a superior courts decision not to grant a trial de novo
in   an  appeal  from  an  administrative  agency  for  abuse  of
discretion and will uphold the superior courts decision unless we
are  left with a definite and firm conviction after reviewing the
whole  record  that the trial court erred in  its  ruling.20   We
review grants of summary judgment de novo and will affirm summary
judgment if there are no genuine issues of material fact  and  if
the  moving  party is entitled to judgment as a  matter  of  law.
When making this determination, we draw all reasonable inferences
in favor of the non-moving party.21
IV.  DISCUSSION
          Although  Dr. Yost raises several issues on  appeal  to
this  court, her core contention is that the superior court erred
in converting her civil action to an administrative appeal rather
than  allowing  her  civil  suit to proceed.   We  conclude  that
although  the  superior court properly treated  the  case  as  an
administrative appeal, the court erred by not holding a trial  de
novo  to determine the existence of a condition precedent to  the
MOA.   Because  we remand for a trial on this issue,  we  do  not
reach  Dr. Yosts alternative arguments that the denial of a trial
violated  her  constitutional rights to due process  and  witness
confrontation.22
     A.   The Terms Of The MOA Do Not Bar Dr. Yosts Appeal.
          A.   As a threshold issue, the Division urges us to hold that Dr.
Yosts  action, whatever its characterization, should be dismissed
as  barred by the terms of the MOA itself.  Although the superior
court  did  not rely on that conclusion in dismissing  Dr.  Yosts
case,  the  Division  suggests this as  an  alternate  basis  for
affirming  the  superior courts decision.23  The Division  argues
that Dr. Yosts appeal is barred by the MOA term in which Dr. Yost
          knowingly and voluntarily waived her right . . . to appeal the
Boards decision to the Superior Court.
          When  interpreting contract language, our  goal  is  to
give  effect  to  the reasonable expectations of  the  parties.24
Here,  the language of the MOA and the purpose for which  it  was
executed  allow us to discern the parties reasonable expectations
with  regard to the waiver.  Like a typical settlement agreement,
the MOA attempted to facilitate the exchange of valuable promises
between two parties with the goal of avoiding further litigation:
Dr. Yost agreed to waive her right to an adjudicatory proceeding25
and  accept  discipline  in return for  an  unrestricted  medical
license;  the  Division agreed to waive its (asserted)  right  to
deny  Dr.  Yost  a  license in return for  the  right  to  impose
discipline  without the full-scale adjudicatory  proceeding  that
would otherwise have been required.
          The  MOA itself states that the parties intended  their
agreement  to  provide for the compromise and settlement  of  all
issues  which  could  be  raised  by  [a  denial  of  Dr.   Yosts
application] through a formal hearing process.  The MOA provision
titled Waiver of Rights lists the rights to which Dr. Yost  would
have  otherwise been entitled under the Administrative  Procedure
Act, including the right to an administrative hearing,26 the right
to  present  oral and documentary evidence,27 and  the  right  to
appeal the Boards decision to Superior Court.28  In this context,
we conclude that the parties reasonably expected Dr. Yosts waiver
of  her  right  to  appeal to encompass only  the  appeal  rights
associated  with  the administrative hearing to  which  Dr.  Yost
would  have been entitled absent a settlement.  Thus,  while  Dr.
Yost  is  barred under the MOA from appealing the merits  of  the
Boards  decision  to  discipline her,  she  is  not  barred  from
challenging the enforceability of the underlying agreement  which
granted the Board power to act.  To interpret the waiver  as  the
Division  suggests   to bar an appeal of the agreements  validity
related  to  the violation of a condition  would presumably  mean
also  finding a waiver of the right to challenge the validity  of
the agreement on other grounds, such as fraud29 or duress.30  This
interpretation would be unreasonable.  Therefore, we  reject  the
Divisions  argument that Dr. Yosts action should be dismissed  as
barred by the terms of the MOA.
     B.   The Superior Court Did Not Err In Treating Dr. Yosts Civil
          Suit As An Administrative Appeal.
          A.   Dr. Yost argues that the superior court erred in converting
her  civil  action for breach of contract into an  administrative
appeal  of  the  Boards decision.  The Division argues  that  the
superior courts conversion of the case was correct.  The  parties
divergent   characterizations  of  this  case  stem  from   their
different views of what the case is fundamentally about.  To  Dr.
Yost,  her case presents a straightforward attack on the validity
of a contract.  In her view, although she agreed to enter into  a
settlement with the Division, her consent to the agreement hinged
on   one   express  condition  to  which  Matthews,  a   division
representative,  had agreed: that she would have the  opportunity
to  appear  before the Board, explain her mistake, and  ask  that
they   reject   the   MOA  and  issue  her  a   license   without
          qualification.  Because this condition was never fulfilled, Dr.
Yost argues, the MOA and the Boards order entered pursuant to  it
should  be  voided.  To the Division, this is  a  case  about  an
applicant seeking to set aside a routine administrative decision:
the Boards decision to adopt the provisions of the MOA.  Whatever
contract theory it may invoke, Dr. Yosts desired remedy is  still
essentially  a  judgment voiding an administrative decision,  and
therefore only an administrative appeal is appropriate.
          We  have consistently held that, [h]owever denominated,
a  claim  is functionally an administrative appeal if it requires
the court to consider the propriety of an agency determination.31
When  a  court  could  not  grant the  relief  requested  without
reversing  the  prior agency determination, the claim  should  be
treated as an administrative appeal.32  A decision of the Board is
considered an agency determination for purposes of this analysis.33
Here,  although  Dr. Yost framed her argument in contract  theory
terms,  it  is  inescapable that her  request  to  void  the  MOA
functionally   required  the  superior  court  to  consider   the
propriety  of the Boards decision to adopt it.  The  court  could
not   have  granted  Dr.  Yost  the  relief  she  sought  without
simultaneously  reversing  the Boards  decision.   Therefore,  we
conclude   that   the  superior  court  correctly   characterized
Dr. Yosts action as an administrative appeal.
     C.   It  Was Error To Deny A Trial De Novo To Determine  The
          Existence Of A Condition Precedent To The MOA.
          A.   In an appeal to the superior court from an administrative
agency,  the superior court has discretion to grant  a  trial  de
novo in whole or in part.34  Although a court normally reviews an
agencys  decision  on  the  record, we have  upheld  or  directed
application  of  de  novo  review  where  the  agency  record  is
inadequate; where the agencys procedures are inadequate or do not
otherwise afford due process; or where the agency . . .  excluded
important evidence in its decision-making process.35  Although it
is rarely warranted,36 an appellant has a right to a trial de novo
if  an administrative adjudicative procedure does not afford  due
process.37   In Keiner v. City of Anchorage,38 we held  that  the
requirements  of  procedural due process were  satisfied  in  the
administrative adjudication context when:
          [t]he Board made its findings only after  due
          notice and full opportunity to be heard;  the
          conduct  of  the hearing was consistent  with
          the  essentials of a fair trial; there is  no
          assertion  that  the Board was  anything  but
          impartial;  and  a  complete  record  of  the
          proceedings  was kept so that  the  reviewing
          court was able to determine that there was no
          substantial  failure  to  observe  applicable
          rules  of law and procedure, and that in  all
          other respects [the appellant] was afforded a
          fair hearing.[39]
          Here,  we  conclude  that it was error  to  affirm  the
Boards  decision  without first conducting a  trial  de  novo  to
determine the existence of a condition precedent.40  We reach this
conclusion  because  of the unusual course of proceedings  below.
          The agency determination that is the subject of this appeal is
the Boards decision to adopt the MOA.  This decision was made  by
a  vote  of  the  Board  with  no other  procedural  formalities.
Although the Board was aware that Dr. Yosts attorney wished to be
present for the vote,  the Board made no findings relating to the
disputed  condition  precedent, indeed, it is  unclear  that  the
Board  was  aware that such a dispute existed.  At  the  superior
court level, the court defined the question on appeal as: whether
the  Boards action should be invalidated because Dr. Yost did not
address the Board in person when the [MOA] was presented . . .  .
It answered this question in the negative.
          The  superior  courts decision attempted to  apply  the
standards  of review typically used by superior courts  reviewing
agency  decisions, including  the substantial evidence  test  for
questions of fact.41  However, the decision did not actually apply
this  standard  to  the  crucial factual  question:  whether  the
Division  had  promised Dr. Yost an opportunity to appear  before
the  Board.   Rather  than reviewing an  agency  finding  on  the
existence of such a promise to determine whether that finding was
supported by substantial evidence  which it could not do  as  the
question  was  never considered at the agency  level   the  court
implicitly  engaged  in  first-instance factfinding.   The  court
reviewed  the  affidavits  and  documentary  evidence  previously
submitted  by  the  parties in support of their summary  judgment
motions and concluded on the basis of this evidence that the  MOA
does not include a condition precedent.  The court explained that
the evidence that Dr. Yost points to in support of her position .
. . merely indicates that the Division and the Board would permit
Dr.  Yost  and  her attorney to be present at the Boards  meeting
not  that  their presence was required before the  MOA  could  be
approved. (Emphasis in original.)
          We  conclude that it was an abuse of discretion to make
this  finding without conducting a trial de novo.  Dr.  Yost  had
the  right  to  a  trial  de novo on the  issue  of  a  condition
precedent because the administrative proceedings  in this case, a
vote  by  the  Board  to adopt the MOA  did not  afford  her  due
process on this outcome-determinative issue.42  The administrative
proceeding lacked important hallmarks of procedural due  process,
such  as  notice and an opportunity to be heard.43  This  is,  of
course,  because there was no agency proceeding which  considered
the  existence  of  a  condition precedent.   Thus,  due  process
entitled  Dr. Yost to a trial de novo on this issue.  The  courts
decision, which made factual findings without the benefit of live
testimony  or cross-examination, does not satisfy the requirement
of due process.
     D.   The Failure To Conduct A Trial De Novo Was Not Harmless
          Error.
          The  Division  argues that even if the  superior  court
erred  by  not conducting a trial de novo, any error was harmless
because  the  Division was entitled to summary  judgment  on  the
condition  precedent issue.44  When a superior court  conducts  a
trial  de  novo in an appeal from an administrative  agency,  all
proceedings  in  the action are governed by the  rules  governing
procedures  in the superior court.45  This includes  the  summary
          judgment procedures set out in Alaska Rule of Civil Procedure 56.46
          We  review grants of summary judgment de novo and  will
affirm  summary  judgment  if there  are  no  genuine  issues  of
material fact and if the moving party is entitled to judgment  as
a  matter  of law.  When making this determination, we  draw  all
reasonable  inferences in favor of the non-moving  party.47   The
party opposing summary judgment, in this case Dr. Yost, need  not
establish that it will ultimately prevail at trial but only  that
there exists a genuine issue of fact to be litigated.48
          Here,  Dr. Yost argues that summary judgment  would  be
inappropriate  because there is a genuine issue of material  fact
as  to  the  existence of a condition precedent to the  MOA.   We
agree  with  Dr. Yost that the evidence raises an issue  of  fact
which  must  be  litigated.  Both Dr. Yost and her  then-attorney
Thorner  submitted  affidavits asserting that  Matthews  promised
them  an opportunity to address the Board. Matthews wrote a  note
to  Thorner  stating  that Dr. Yost had an appointment  with  the
Board.49  Matthews log notes also reference Dr. Yosts appointment
with the Board  and the board meeting minutes show that the Board
knew  Dr.  Yosts attorney wished to be contacted.   In  addition,
evidence  of  Thorners  contemporaneous  understanding   of   the
situation  can be found in the letter he wrote to the  Board  the
day  after the MOA was adopted; in the letter, he asked the Board
to reconsider the MOA at its next meeting because Dr. Yost signed
the  [MOA] with the understanding that she would be permitted  to
address  the Board, and was denied the opportunity of making  her
presentation.  Certainly the credibility of Dr. Yost and  Thorner
must  be  weighed against that of Matthews and Gallant, who  both
submitted  affidavits asserting no promise  was  made.   However,
[c]redibility is a factual issue . . . properly determined by the
factfinder at trial, not a matter of law determined by the  court
in  summary  judgment.50   Similarly, while  we  agree  with  the
Division  that the evidence could give rise to an inference  that
Matthews  told  Dr. Yost she could attend the meeting  but  never
promised she could participate, on summary judgment we must  draw
all reasonable inferences in favor of the non-moving party.51
          The  Division  argues  that it is entitled  to  summary
judgment  because the condition was not memorialized in  the  MOA
and  if  Dr. Yosts participation at the board meeting was key  to
the  whole MOA process, then that participation should have  been
specified in the MOA.  The Division provides no support for  this
proposition and we do not find any.52  In addition, the  Division
argues that it is entitled to summary judgment because Dr.  Yosts
asserted condition conflicts with terms contained in the MOA  and
a  contract  should not be given an interpretation which  creates
conflict  among  its provisions.53  This argument  is  misplaced.
This  case  does  not  involve an ambiguous  contract  term  that
requires a courts interpretation, but rather involves the factual
question  whether an additional term exists.   If  the  court  on
remand  finds  that  a  condition precedent  is  a  part  of  the
agreement,  it  is  at  that point that the  court  should  apply
interpretive rules to resolve any ambiguity.
          Finally,  the  Division argues that it is  entitled  to
summary judgment because contract conditions are disfavored under
          Alaska law.  The Division is correct that to be enforceable, a
condition generally must be expressed in plain language or  arise
by clear implication.54  The purpose of this rule is to avoid the
risk  of  forfeiture  that may result when a  slight  failure  to
perform  wholly destroys all rights under the contract.55   Under
these  circumstances, however, the purpose of the rule would  not
be  served by its strict application.  Dr. Yost asserts  that  an
opportunity  to  address  the  Board  was   fundamental  to   her
participation  in  the  agreement;  thus,  the  denial  of   that
opportunity  cannot be a called a slight failure to perform.   In
addition, the Division faces no undue risk of forfeiture  because
the occurrence of the condition is entirely within its power;  to
satisfy the condition and obtain the full benefit of the bargain,
the  Board needed only to provide Dr. Yost an opportunity  to  be
heard.56  Therefore, we conclude that the interpretive rule  does
not apply to the facts of this case.57
          In  sum, we conclude that Dr. Yost has raised a genuine
issue  of  material  fact  as to the  existence  of  a  condition
precedent  to  the  MOA,  making  the  issue  inappropriate   for
resolution  on summary judgment.  Therefore, the superior  courts
failure to conduct a trial de novo on that issue was not harmless
error.   On remand, the court should conduct a trial to determine
whether the Division promised Dr. Yost that she could address the
Board before it voted on adoption of the MOA.  If the court finds
such  a promise, then the matter should be remanded to the  Board
to provide Dr. Yost that opportunity.  If the court does not find
such a promise, then it should affirm the Boards decision.58
V.   CONCLUSION
          Because  Dr. Yosts claim required the court to consider
the  propriety of an agency determination, we hold that the court
correctly  treated  her  civil case as an administrative  appeal.
However,  because  the  agency proceeding  did  not  provide  due
process  on  the condition precedent question, we hold  that  Dr.
Yost  was  entitled to a trial de novo.  Because the Division  is
not  entitled  to  summary  judgment on the  condition  precedent
issue,  we hold that the erroneous denial of a trial de novo  was
not  harmless.   Therefore, we REMAND to the superior  court  for
further proceedings consistent with this opinion.
_______________________________
     1     The  medical center hired Dr. Yost to substitute while
the  hospitals only other neurosurgeon took leave.  The  position
lasted approximately one month.

     2    See AS 08.64.326(a)(1) (The board may impose a sanction
if  the  board  finds  . . . that a licensee  secured  a  license
through  deceit,  fraud,  or intentional misrepresentation.);  AS
08.64.240(b)  (The board may refuse to grant  a  license  to  any
applicant  for  the same reasons that it may impose  disciplinary
sanctions under AS 08.64.326.).

     3     This case does not present, and we do not decide,  the
question  of  whether  the  Washington  inquiry  constituted   an
investigation  for  medical  licence  application  purposes,   or
whether  the  Board  may deny a license based  on  a  mistake  or
misunderstanding in the application process.

     4    AS 44.62.390.

     5    AS 44.62.430-440.

     6    AS 44.62.560; AS 22.05.010(c).

     7     The  record  cites both 3:30 PM and  4:30  PM  as  the
anticipated  time  the Board would discuss the Dr.  Yost  matter.
The  discrepancy is not explained and the one hour difference  is
not material to how the facts unfolded.

     8    Thorner is not representing Dr. Yost before this court.

     9     Dr.  Yost  also asserted that she was entitled  to  an
injunction  requiring  the Division to  withdraw  its  report  of
discipline from the National Practitioners Data Bank, a federally-
maintained  database  of  disciplinary  actions  used  by   state
licensing boards, malpractice payers, hospitals, and professional
societies.   National Practitioners Data Bank,  Frequently  Asked
Questions,
http://www.npdb-hipdb.hrsa.gov/faq-GeneralInformation.html.
State  licencing  authorities  must report  disciplinary  actions
against  physicians  to the NPDB. 42 U.S.C.    11132;  45  C.F.R.
60.8; AS 08.64.335.

     10    AS 44.62.560; Alaska R. App. P. 602(a)(2).

     11     Alaska  R. of App. P. 602(a) (The 30-day  period  for
taking  an  appeal  does not begin to run until  the  agency  has
issued a decision that clearly states that it is a final decision
and that the claimant has thirty days to appeal.).

     12     The  courts  written  rulings granted  the  Divisions
summary judgment motion in part, referring to its adoption of the
Divisions  reasoning  on  the  administrative  appeal  conversion
issue.

     13     The  court also issued written rulings which restated
its oral rulings.

     14    Dr. Yost expressly reserved her right to challenge the
courts  conversion  of  her  civil action  to  an  administrative
appeal.

     15     Dr.  Yosts argument was framed by the scope of review
for   administrative  appeals  provided  in  the   Administrative
Procedure Act. AS 44.62.570(b)-(c) (inquiry on appeal extends  to
.  . . whether there was a prejudicial abuse of discretion. . . .
[which]  is  established  if  [the  court  determines  that]  the
findings are not supported by . . . substantial evidence  in  the
light of the whole record.).

     16     For  a discussion of the significance of this report,
see supra note 9.

     17     The court also rejected Dr. Yosts arguments that  the
Board violated the Administrative Procedure Act.  A discussion of
these arguments is not necessary to our resolution of the case.

     18     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1033
(Alaska 2003).

     19    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d
1018,  1023 (Alaska 2005) (citing Brandon v. State Dept of Corr.,
938 P.2d 1029, 1031-32 (Alaska 1992)).

     20     Anchorage  Concerned Coal., Inc. v.  Municipality  of
Anchorage Bd. of Adjustment, 172 P.3d 774, 778-79 (Alaska 2007).

     21     Howell  v.  Ketchikan Pulp Co., 943 P.2d  1205,  1207
(Alaska 1997) (internal citations omitted).

     22     In addition, we do not reach Dr. Yosts argument  that
the superior courts decision violated her constitutional right to
a  jury trial.  Dr. Yosts attorney withdrew this argument at oral
argument  in  light of Dr. Yosts concession that she was  seeking
only  equitable relief and not money damages.  See State v. First
Natl  Bank of Anchorage, 660 P.2d 406, 424 (Alaska 1982) (holding
that  no  right to jury trial exists where plaintiff  seeks  only
equitable relief).
                              
          Finally,  we  do  not reach Dr. Yosts argument  that  a
preliminary   investigation   is   legally   distinct   from   an
investigation,  and  therefore the Divisions original  basis  for
seeking disciplinary action was flawed.  Because Dr. Yost  raises
this  argument  for  the first time in her  reply  brief,  it  is
waived.   See Danco Exploration, Inc. v. State, Dept  of  Natural
Res., 924 P.2d 432, 435 n.1 (Alaska 1996).  Even if Dr. Yost  had
not  waived  the  issue, it is not properly  before  this  court.
Because  Dr. Yost negotiated a settlement, neither the Board  nor
the  superior  court  had  occasion to determine  the  underlying
question   whether  the  Washington  inquiry   was   legally   an
investigation.  Dr. Yost waived her right to challenge the  legal
basis for the disciplinary action when she entered into the  MOA,
and the only issue properly before this court is whether that MOA
is valid.

     23     See United Parcel Serv. v. State, Dept of Revenue,  1
P.3d 83, 87 n.23 (Alaska 2000) (holding that prevailing party may
generally argue for affirmation on appeal on any legal theory).

     24     Monzingo v. Alaska Air Group, Inc., 112 P.3d 655, 660
(Alaska 2005).

     25      AS  08.64.326  (hearing  must  precede  disciplinary
sanctions);  AS 08.64.160 (board shall comply with Administrative
Procedure Act).

     26    See AS 44.62.390(a)(1).

     27    See AS 44.62.430-440.

     28    See AS 44.62.560.

     29     Cousineau v. Walker, 613 P.2d 608, 613 (Alaska  1980)
(holding  that  fraudulent or material misrepresentation  may  be
grounds for voiding contract).

     30     Helstrom  v.  N. Slope Borough, 797 P.2d  1192,  1197
(Alaska 1990) (duress may be grounds for voiding contract).

     31    Haynes v. State, Commercial Fisheries Entry Commn, 746
P.2d  892, 893 (Alaska 1987).  Accord Carlson v. Renkes, 113 P.3d
638,  641 (Alaska 2005); Kleven v. Yukon-Koyukuk Sch. Dist.,  853
P.2d  518, 524 (Alaska 1993); Fairbanks N. Star Borough v. State,
826  P.2d  760, 762 (Alaska 1992); Diedrich v. City of Ketchikan,
805  P.2d  362,  365  (Alaska 1991);  Owsichek  v.  State,  Guide
Licensing & Control Bd., 627 P.2d 616, 619 (Alaska 1981).

     32     Haynes,  746 P.2d at 893; Diedrich, 805 P.2d  at  366
(holding  administrative appeal was proper where  superior  court
could not have granted the requested relief without reversing the
Boards determination).

     33     See State v. Lundgren Pac. Const. Co., 603 P.2d  889,
892   (Alaska   1979)  (holding  Board  of   Adjustment   to   be
administrative  agency for purposes of characterizing  challenges
to  its determinations and defining administrative agency  as   a
governmental  authority, other than a  court  and  other  than  a
legislative  body,  which affects the rights of  private  parties
through either adjudication or rule making).

     34    AS 22.10.020(d); Alaska R. App. P. 609(b)(1).

     35     Anchorage  Concerned Coal., Inc. v.  Municipality  of
Anchorage Bd. of Adjustment, 172 P.3d 774, 778 (Alaska 2007).

     36    Id.

     37    Lundgren Pac. Const. Co., Inc., 603 P.2d at 895.

     38    378 P.2d 406 (Alaska 1963).

     39    Id. at 409-10.

     40     We note that Dr. Yost did not specifically request  a
trial  de novo after the superior court converted the case to  an
administrative appeal.  Arguments not raised in the  trial  court
are  waived and will not be considered on appeal, except  to  the
extent  that plain error has been committed.  Plain error  exists
where  the  trial  court has made an obvious  mistake  .  .  .  .
Wettanen  v.  Cowper, 749 P.2d 362, 364 (Alaska 1988)  (citations
omitted).   Here, because we conclude that the courts failure  to
conduct  a trial de novo was plain error, especially in light  of
Dr.  Yosts  vigorous pursuit of a trial in the civil context,  we
hold  that Dr. Yost did not waive the possibility of a  trial  de
novo in the administrative context.
     41     See Lakloey, Inc. v. Univ. of Alaska, 157 P.3d  1041,
1045 (Alaska 2007).

     42     See  Lundgren Pac. Const. Co., Inc., 603 P.2d at  895
(holding  that  appellant has right  to   trial  de  novo  if  an
administrative  adjudicative  procedure  does  not   afford   due
process).

     43    Keiner, 378 P.2d at 409-410.

     44     Specifically,  the  Division  suggested  during  oral
argument  that we review the superior courts memorandum  decision
as if it were a grant of summary judgment and affirm on the basis
that  summary  judgment was proper.  Although not  designated  as
such, the courts decision did essentially function as a ruling on
summary  judgment because it drew from the affidavits  and  other
evidence  submitted  in  support of  the  parties  prior  summary
judgment motions.  See Alaska R. Civil P. 56(c) (describing types
of  evidence  that  may  be used to support  motion  for  summary
judgment).

     45    Alaska R. App. P. 609(b)(2).

     46     See Nenana City Sch. Dist. v. Coghill, 898 P.2d  929,
932  (Alaska 1995) (holding that application of summary  judgment
rules  is  identical whether case was treated  as  administrative
appeal or independent civil suit).

     47     Howell  v.  Ketchikan Pulp Co., 943 P.2d  1205,  1207
(Alaska 1997) (internal citations omitted).

     48     Alaska Rent-A-Car, Inc. v. Ford Motor Co.,  526  P.2d
1136, 1139 (Alaska 1974).

     49    As evidence that Matthews never guaranteed Dr. Yost an
opportunity  to  speak, the Division points to Matthewss  earlier
note to Thorner saying I will do my best to have the MOA reviewed
by   the  Board  during  the  April  21,  2005  meeting,  however
  . . . that may not be possible.  However, this note was written
before  the MOA was signed and does not foreclose the possibility
that   the   details  were  cemented  sometime  before  Matthewss
subsequent note about the app[ointmen]t with board.

     50    Broderick v. Kings Way Assembly of God Church, 808 P.2d
1211, 1216 (Alaska 1991).

     51    Howell, 943 P.2d at 1207 (internal citations omitted).

     52     Perhaps  the  Division means to reference  the  parol
evidence  rule,  which holds that an integrated written  contract
may  not  be  varied  or  contradicted by prior  negotiations  or
agreements.   Alaska  Diversified  Contractors,  Inc.  v.   Lower
Kuskokwim Sch. Dist., 778 P.2d 581, 583 (Alaska 1989).  A written
agreement  is  integrated if it in view of its  completeness  and
specificity reasonably appears to be a complete agreement, . .  .
unless  it is established by other evidence that the writing  did
not constitute a final expression. Lower Kuskokwim Sch. Dist.  v.
Alaska  Diversified Contractors, Inc., 734 P.2d  62,  64  (Alaska
1987) (quoting Restatement (Second) of Contracts  209(3) (1981)).
The  question of integration is one for the court.   Id.  at  63.
Here, the MOA is not an integrated agreement.  The agreement does
not  contain an integration clause and Matthews in his deposition
stated  that an applicants desire to appear before the  Board  is
not  something  you  would put in the MOA to start  with.   Thus,
evidence  of  a  consistent additional term is not  barred  as  a
matter of law.

     53    McBain v. Pratt, 514 P.2d 823, 828 (Alaska 1973).

     54    Jarvis v. Ensminger, 134 P.3d 353, 358 (Alaska 2006).

     55    Id. at 358 nn. 13 & 15.

     56     See  id. at 358 n.13 (citing Restatement (Second)  of
Contracts   227 (1981)) (interpretive rule disfavoring conditions
does not apply if the event is within the obligees control).

     57    We note that even if the rule did strictly apply here,
it  would  not  result  in  a grant of summary  judgment  to  the
Division.   In our view, the evidence does raise a genuine  issue
of  fact  as  to  whether a condition precedent  arose  by  clear
implication.

     58     Dr. Yost also argued that her civil case should  have
been  allowed to proceed on a bad faith theory arising  from  the
contents of the Boards report to the National Practitioners  Data
Bank.   The Division responded that Dr. Yost had no private cause
of  action  based  on  the report and that  she  had  waived  her
administrative  remedy.   Because we  remand  for  trial  on  the
condition  precedent issue, we do not reach Dr. Yosts  bad  faith
claim.

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