Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. White v. State; Dept of Natural Resources (12/15/00) sp-5343

White v. State; Dept of Natural Resources (12/15/00) sp-5343

     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.


MICALLEF, and PENINSULA       )    Supreme Court No. S-9199
                              )    Superior Court No.
               Appellants,    )    3AN-96-7362 CI
          v.                  )    O P I N I O N  
STATE OF ALASKA, DEPARTMENT   )    [No. 5343 - December 15, 2000]
               Appellee.      )   

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Rene Gonzalez, Judge.

          Appearances:  Robert C. Erwin and Roberta C.
Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants.  Bonnie E.
Harris, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.


          James White, Gregory Micallef, and Peninsula Pipeline
Company (collectively, "White") sued the Alaska Department of
Natural Resources for breach of contract because the department
refused to transfer their oil and gas leases, which expired while
White's applications for transfer were pending.  White alleged that
this breach amounted to a taking of his property without due
process of law.  The superior court granted summary judgment for
the state, concluding that White's claim was barred by res judicata
because of this court's prior decision in a related case, White v.
State. [Fn. 1]  We affirm, holding that res judicata applies to

White's case because his present claims arise from the same facts
and transaction considered in White, and could have been raised in
that prior action. 
          White acquired interests in two state oil and gas leases
that were set to expire on December 1, 1990. [Fn. 2]  The leases
encompassed state mental health trust land. [Fn. 3]  In February
and April 1990 White applied to transfer portions of his lease
interests to third parties.  The department took no immediate
action on his applications.
           In July 1990 a superior court judge presiding over an
ongoing case involving the status of state mental health trust
lands, Weiss v. State, [Fn. 4] issued an order -- the "Weiss
injunction"-- generally barring the state from transferring any
interest in mental health trust land without prior court approval.
[Fn. 5]  The department stopped processing applications for
transfer of all leases located on mental health trust lands.  In
September 1990 White requested that the department extend his
leases to compensate for time lost owing to the Weiss injunction.
[Fn. 6]  The department denied White's request, stating that it
could take no action unless White first obtained permission from
the Weiss court. [Fn. 7]  White did not appeal this decision, made
no effort to obtain a modification of the Weiss injunction, and
took no other action to extend his leases. [Fn. 8]  The leases
expired as of December 1, 1990. [Fn. 9] 
          More than three months after the leases expired, White
complained to the department that he had been "denied an
opportunity to obtain a drilling permit, or seek an extension of"
the leases as a result of the Weiss injunction. [Fn. 10]  The
department rejected White's complaint, ruling that the leases had
expired at the end of their primary term as a result of White's
inaction, not as a result of the injunction.  White appealed to the
superior court, which upheld the department's decision. [Fn. 11] 
          White then appealed to this court.  In White v. State, we
affirmed the superior court's ruling, concluding that substantial
evidence supported the department's determination that White was
responsible for allowing the leases to expire, because he had
failed to make good faith efforts to extend them beyond their
primary term. [Fn. 12]  In reaching this conclusion, we noted that
White had engaged in no productive activity to extend his leases
before the Weiss injunction went into effect and that he had made
no attempt to modify the injunction even though he knew that
another lessee of state lands had successfully done so. [Fn. 13] 
We also noted that White had failed to show that he had made any
attempt to apply for a drilling permit (which would have extended
his leases), or even that enough time remained to go through the
ordinary permitting process between the day that the Weiss
injunction was issued and the day that his leases expired. [Fn. 14]
          Five months after this court issued its decision in
White, White filed this action for breach of contract and unlawful
taking of property.  White asserted that the Weiss injunction had
caused the department to stop processing his pending applications
for lease assignments, that the department's inaction amounted to
a breach of its duties under the lease contracts, and that this
breach caused the termination of the leases, thereby wrongfully
depriving him of his property.
          The department, citing White, moved for judgment on the
pleadings.  The superior court granted the department's motion,
treating it as one for summary judgment, since the court deemed
White to be a matter outside the pleadings.  The court reasoned
that White's new claims were based on the same acts litigated in
White, that White could have asserted these claims as part of his
earlier action, and that res judicata therefore barred him from
relitigating the claims in a new cause of action.  White appeals. 
     A.   Standard of Review
          We review de novo a superior court's order granting a
motion for summary judgment or for judgment on the pleadings. [Fn.
15]  We will affirm the order if our review of the record in the
light most favorable to the non-moving party convinces us that the
material facts are undisputed and entitle the moving party to
judgment as a matter of law. [Fn. 16] 
     B.   White's Claims Are Barred by Res Judicata.
          The superior court, applying the doctrine of res
judicata, found White's action precluded by this court's ruling in
White. [Fn. 17]  Under the doctrine of res judicata, 
          a judgment in a prior action operates as a bar
to a subsequent action if (1) the prior judgment was a final
judgment on the merits, (2) a court of competent jurisdiction
rendered the prior judgment, and (3) the same cause of action and
same parties or their privies were involved in both suits.[ [Fn.

          White acknowledges that our decision in White was a final
judgment and that the present case and White involve the same
parties.  White argues, however, that the issues raised in his
former action and decided in White are not identical to his present
claims for breach of contract and inverse condemnation.  But res
judicata precludes subsequent actions not only on claims actually
raised in a prior proceeding, but also on related claims arising
out of the same transaction that could have been raised in that
proceeding.  For purposes of res judicata, the prior judgment
extinguishes "'all rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction . . .
out of which the action arose.'"[Fn. 19]  "What factual grouping
constitutes a 'transaction' is determined by 'whether the facts are
related in time, space, origin, or motivation,' and 'whether they
form a convenient trial unit.'"[Fn. 20]  Hence, to determine if
two claims comprise the same cause of action, we compare their
underlying facts and the transactions from which they arose, not
the precise legal theories that their proponent selects to describe
them. [Fn. 21] 
          The legal theory that White advanced in his original
administrative action -- the theory we ultimately rejected in White 
-- was that the Weiss injunction was a "force majeure"that
entitled him to extend his leases because it stalled his efforts to
transfer portions of his lease interests, thereby preventing him
from developing the leases before their original expiration date. 
Although White's subsequent contract and condemnation claims
advance new legal theories, they challenge the same departmental
actions -- the department's failure to process White's transfer as
a result of the Weiss injunction -- and evolve from the same basic
factual setting as his earlier force majeure claim.  For purposes
of res judicata, then, White's current action arises from the same
transaction that he litigated to final judgment in White. 
          White does not dispute that he was aware of the
department's alleged breach of contract when he raised his force
majeure theory in the earlier administrative action.  Moreover, he
concedes that his inverse condemnation claim stems directly from
this breach.  White nevertheless insists that he could not have
raised his breach of contract claim in the administrative
proceeding because the department lacked jurisdiction to decide
whether it breached its own contract.  But this argument lacks
          White's contract and inverse condemnation claims fit
comfortably within the scope of an ordinary administrative claim. 
The department's regulations require oil and gas lessees to pursue
all grievances through administrative remedies, making no exception
for contract claims. [Fn. 22]  The commissioner is the final
administrative adjudicator of such grievances. [Fn. 23]  In other
contexts, we have recognized the authority of administrative
agencies to consider breach of contract claims in which the
agencies were parties. [Fn. 24]  And White advances no persuasive
reasons to treat his claims differently.  
          Moreover, White chose to press an administrative claim
raising only his force majeure theory.  After an adverse agency
decision, White appealed to the superior court, but made no attempt
to raise his contract claim then. [Fn. 25]  He likewise failed to
mention his breach of contract claim in appealing the superior
court's decision to this court.  Having elected to pursue one
narrow legal theory to final judgment in his administrative action,
White was no longer free to reopen the litigation simply by
reshaping his claim to fit a new and broader legal mold. [Fn. 26] 
The final judgment in White extinguished all the issues that were
or could have been considered by the agency and the superior court
in that case. [Fn. 27]
          White further asserts, however, that he had no inverse
condemnation claim to assert until the department's refusal to
transfer the leases became final.  Because White bases his inverse
condemnation claim on the department's inaction, White reasons that
he would have suffered no damages if the department had eventually
agreed to extend his leases.  Thus, White contends, the improper
taking could not have occurred until sometime after the expiration
date of the leases. [Fn. 28] 
          To support this argument, White cites Ehrlander v. State,
Department of Transportation and Public Facilities. [Fn. 29]  But
Ehrlander is inapposite.  There, a borough platting board
preliminarily rejected Ehrlander's application to subdivide his
property.  In a subsequent inverse condemnation action filed
directly in superior court, the superior court ruled that Ehrlander
had failed to exhaust his administrative remedies, because he
neglected to appeal the platting board's decision to the borough's
planning commission.  In reversing the superior court's ruling, we
simply observed that Ehrlander could reasonably have elected not to
appeal to the planning commission on the ground of inverse
condemnation, since the platting board had expressly indicated that
it would "take a second look"at his application to subdivide in
approximately six months. [Fn. 30]  
          In the present case, by contrast, the department
responded to White's September 1990 request to extend his leases by
unequivocally stating that it would refuse to take action to
transfer or extend White's leases unless he first obtained a
modification of the Weiss injunction from the court presiding over
that case.  In so responding, the department firmly adopted its
position on the issues of lease transfer and extension.  Moreover,
White had already put the agency on notice that he considered it to
be in breach of his lease contracts.  Thus, by his own account,
White had already lost the "economic advantages of ownership."[Fn.
31]  Accordingly, assuming that a viable inverse condemnation claim
might arise from this set of circumstances, the claim by then would
have fully accrued.  
          Yet despite the obvious ripeness of his claims for breach
of contract and inverse condemnation, White neither appealed the
department's decision nor attempted to relax the Weiss injunction;
he simply let his leases expire and, months later, filed an
administrative action.  When he filed that action, White could have
asserted at least three alternative legal theories -- force
majeure, breach of contract, and inverse condemnation -- that might
have yielded two alternative forms of relief -- an extension of his
leases or an award of damages.  Although White elected to pursue
only his force majeure claim, nothing prevented him from
simultaneously asserting all three theories in his administrative
action, or from seeking both forms of alternative relief. 
          White therefore had ample opportunity to litigate these
claims in the procedural context of his initial administrative
action; the fact that he chose not to, whether "because of a
strategic decision or ignorance or other reason,"does not exempt
him from the principles of res judicata. [Fn. 32]  To hold
otherwise would defeat the doctrine's underlying goal of judicial
finality -- that "there shall be a termination of litigation and
the participants [shall not be] vexed twice for the same cause."
[Fn. 33] 
     C.   White Was Not Prejudiced by the Court's Conversion of the
State's Motion for Judgment on the Pleadings into One for Summary

          In the superior court, the state raised its res judicata
argument in a motion for a judgment on the pleadings, [Fn. 34]
asking the court, alternatively, to consider its motion as one for
summary judgment.  In response to the state's motion, White argued
against a judgment on the pleadings and asked for additional time
to submit affidavits and other evidentiary materials if the court
chose to treat the state's motion as one for summary judgment. [Fn.
35]  Without addressing White's request for additional time, the
superior court simply deemed the state's motion to be a motion for
summary judgment and, on that basis, entered judgment in favor of
the state. [Fn. 36]  
          White argues on appeal that the superior court erred by
converting the state's motion for a judgment on the pleadings into
a motion for summary judgment without giving him additional time to
marshal evidence and submit affidavits.  Yet we conclude that any
error in failing to adhere strictly to the requirements of Rule 56
was plainly harmless.  
          The superior court treated the state's motion as one for
summary judgment in only a single respect: by taking notice of this
court's decision in White, a matter that the superior court deemed
to be outside the pleadings.  We assume for present purposes that
courts deciding motions for judgment on the pleadings under
Rule 12(c) may not judicially notice prior appellate decisions
without reaching beyond the face of the pleadings. [Fn. 37]  Even
so, White has failed to show any prejudice resulting from the
superior court's failure to allow him additional time before
entering judgment against him based on White.  The superior court
relied on White not as a source of factual information, but only as
a basis for its legal conclusion that White's current claims have
already been litigated and are now barred by the doctrine of res
judicata.           The critical issue in determining if White has
been prejudiced is whether he "'should reasonably have recognized
the possibility that the motion might be converted into one for
summary judgment or was taken by surprise and deprived of a
reasonable opportunity to meet facts outside the pleadings.'"[Fn.
38]  Here, in his opposition to the state's motion for judgment on
the pleadings, White recognized and discussed the possibility that
the superior court might treat the state's motion as one for
summary judgment. Indeed, at oral argument before the superior
court, he expressly asked the court to exercise its discretion to
go outside the pleadings, offering to produce evidence that he
deemed favorable to his position.  Yet all of this evidence related
to the merits of White's contract and inverse condemnation claims;
[Fn. 39] none addressed the determinative legal issue of res
judicata -- the only issue upon which the court considered
materials outside the pleadings.  And on appeal White has suggested
no other evidence or arguments that might rescue his claim.   
          Thus, even if the superior court had given White
additional time to muster and formally present evidence in response
to the state's summary judgment motion, we find no reason to expect
that this evidence would have altered the superior court's ruling,
which bypassed the factual merits of White's claims and fixed on
narrow legal principles.  Accordingly, White has failed to show
prejudicial error. [Fn. 40]
          Because we conclude that White precludes White's breach
of contract and inverse condemnation claims under the doctrine of
res judicata, we AFFIRM the superior court's judgment.


Footnote 1:

     Mem. Op. & J. No. 0812 (Alaska, March 6, 1996).

Footnote 2:

     See id. at 1-2.

Footnote 3:

     State mental health trust land is land that was conveyed to
the state under the Alaska Mental Health Enabling Act of 1956. See
Pub. L. No. 84-830, 70 Stat. 709 (1956); see also White, Mem. Op.
& J. No. 0812 at 2.

Footnote 4:

     See Weiss v. State, No. 4FA-82-2208 CI (Alaska Super., July 9,

Footnote 5:

     See White, Mem. Op. & J. No. 0812 at 2.

Footnote 6:

     See id. at 3.

Footnote 7:

     See id.

Footnote 8:

     See id. at 5.

Footnote 9:

     See id. at 2-3.

Footnote 10:

     Id. at 3.

Footnote 11:

     See id. at 4.

Footnote 12:

     See id. at 5.

Footnote 13:

     See id.

Footnote 14:

     See id.

Footnote 15:

     See Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997);
McAdoo v. Diaz, 884 P.2d 1385, 1387 n.2 (Alaska 1994).

Footnote 16:

     See Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska

Footnote 17:

     White argues that the state waived the right to rely on res
judicata in the superior court because it failed to assert the
defense in answering White's complaint.  See Alaska R. Civ. P.
8(c), 12(b).  But when the state later asserted the defense of res
judicata in its motion to dismiss White's complaint, White did not
object on procedural grounds; instead, he contested the defense on
its merits.  By so doing, White effectively agreed to treat the
defense as part of the pleadings.  See Oaksmith v. Brusich, 774
P.2d 191, 199 (Alaska 1989).

Footnote 18:

     Tope v. Christianson, 959 P.2d 1240, 1243 (Alaska 1998)
(quoting Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska 1985),
overruled on other grounds by Bibo v. Jeffrey's Restaurant, 770
P.2d 290, 295 (Alaska 1989)).

Footnote 19:

     DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987) (quoting
State v. Smith, 720 P.2d 40, 41 (Alaska 1986)).

Footnote 20:

     Tope, 959 P.2d at 1244 (quoting Plumber v. University of
Alaska Anchorage, 936 P.2d 163, 167 (Alaska 1997)).

Footnote 21:

     See Tope, 959 P.2d at 1244.

Footnote 22:

     See 11 Alaska Administrative Code (AAC) 88.155 (requiring oil
and gas lessees that have grievances with the state to pursue the
administrative procedures provided by 11 AAC 02.010, et seq.); see
also Danco v. State, 924 P.2d 432, 434 (Alaska 1996) (rejecting
appellant's attempt to characterize his claim for interest on funds
submitted in connection with oil and gas lease bids as a tort or
contract claim against the state: "[o]il and gas lessees and lease
bidders which have grievances with the State must pursue the
administrative procedures provided by 11 AAC 02.010").

Footnote 23:

     See 11 AAC 02.010(c).

Footnote 24:

     See, e.g., Broeckel v. State, Dep't of Corrections, 941 P.2d
893, 896 (Alaska 1997) (rejecting breach of contract claim by
prisoner because of failure to pursue Palmer Correctional Center's
formal grievance procedures); Calhoun v. State, Dep't of Transp.
and Pub. Facilities, 857 P.2d 1191, 1194 (Alaska 1993) (finding a
contractor's breach of contract claim against the state barred by
res judicata because he did not preserve it in his administrative

Footnote 25:

     Predicting that the department would never have admitted  that
it breached a contract, White has separately invoked the doctrine
of futility as a justification for failing to raise his contract
claim before the department in his administrative action.  This
argument lacks merit, because White fails to back it up with any
specific evidence of the department's partiality.  See Diedrich v.
City of Ketchikan, 805 P.2d 362, 370 (Alaska 1991).  In any event,
futility cannot explain White's failure to raise his contract claim
in conjunction with his superior court appeal of the department's
ruling on his force majeure claim. 

Footnote 26:

     Cf. State v. Fairbanks North Star Borough, 826 P.2d 760, 762

(Alaska 1992) ("However denominated, a claim is functionally an
administrative appeal if it requires the court to consider the
propriety of an agency determination.").

Footnote 27:

     See id. at 763.

Footnote 28:

     Although White couches his argument in terms of exhaustion of
administrative remedies rather than res judicata, he fails to
specify precisely when he believes that his condemnation claim
accrued.  It is thus possible to read his argument as suggesting
that his condemnation claim did not even accrue until we finally
resolved the force majeure issue with our decision in White and
that res judicata therefore does not preclude that claim.  In other
words, it seems that White might be claiming that he could not have
raised his condemnation claim before we issued White, because, if
he had prevailed on his force majeure theory in the administrative
action and had won an extension on his leases, he ultimately would
not have suffered a taking, and would then have had no cause of
action for condemnation.  We thus deal with White's argument in
addressing the issue of res judicata, even though its primary
relevance is on exhaustion of administrative remedies -- an
alternative theory adopted by the trial court that we find it
unnecessary to consider.  See infra note 40. 

Footnote 29:

     797 P.2d 629 (Alaska 1990).

Footnote 30:

     Id. at 635 n.16.

Footnote 31:

     Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897 P.2d
47, 52 (Alaska 1995) (quoting Homeward Bound, Inc. v. Anchorage
Sch. Dist., 791 P.2d 610, 614 (Alaska 1990) (A property owner can
recover damages for inverse condemnation if the state's activities
deprive him of the "economic advantages of ownership.")). 

Footnote 32:

     Plumber v. University of Alaska Anchorage, 936 P.2d 163, 168
(Alaska 1997).

Footnote 33:

     Palfy v. First Bank of Valdez, 471 P.2d 379, 384 (Alaska 1970)
(quoting 1B J. Moore, Federal Practice  0.405(2), at 631 (2d ed.

Footnote 34:

     See Alaska Rule of Civil Procedure 12(c), which provides:

          Motion for Judgment on the Pleadings.  After
the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings.  If, on a
motion for judgment on the pleadings, matters outside the pleadings
are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.

Footnote 35:

     Alaska Civil Rule 77 allows a party opposing summary judgment
fifteen days to respond to the motion and the right of oral
argument.  See Alaska R. Civ. P. 77(c), (e); see also Shooshanian
v. Wagner, 672 P.2d 455, 460-61 (Alaska 1983) (declining to review
the trial court's sua sponte dismissal as a motion for summary
judgment because appellants did not have sufficient notice or an
adequate opportunity to respond under Civil Rules 77(c) and (e)). 
Under Civil Rule 56(c), the party's response may include affidavits
covering all material facts in dispute.

Footnote 36:

     We have held that when a trial court converts a Rule 12(b)(6)
motion for failure to state a claim upon which relief can be
granted into a motion for summary judgment without following the
required procedures, three options are available to this court: (1)
reverse and remand for proper consideration as a Rule 12(b)(6)
dismissal motion with the outside matters expressly excluded, or as
a Rule 56 motion with the attendant requirements of that rule; or
(2) review the superior court's decision as a Rule 12(b)(6)
dismissal, as if the motion had been granted after exclusion of
outside materials as required; or (3) review the superior court's
decision as an entry of summary judgment.  See Martin v. Mears, 602
P.2d 421, 427 (Alaska 1979).  The same standard applies to Rule
12(c) motions for judgment on the pleadings.  See Demmert v.
Kootznoowoo, Inc., 960 P.2d 606, 609 (Alaska 1998).

Footnote 37:

      Some cases do support the contrary view.  See, e.g.,
Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc.,
969 F. Supp. 907, 915-16 (D.N.J. 1997), rev'd on other grounds, 159
F.3d 129 (3d Cir. 1998) ("A court may take judicial notice of
decisions of administrative bodies without converting motions to
dismiss into motions for summary judgment."); Nix v. Fulton Lodge
No. 2 of Int'l Ass'n of Machinists and Aerospace Workers, 452 F.2d
794, 797-98 (5th Cir. 1971) ("Xerox copies of opinions of this
court, attached to a memorandum of law submitted . . . in
connection with the Rule 12(b)(6) motions"were not matters
"outside the pleadings sufficient to transform a Rule 12(b)(6)
motion into a motion for summary judgment."); but see United Parcel
Serv. Inc. v. California Pub. Utils. Comm'n, 839 F. Supp. 702, 704
(N.D. Cal. 1993), rev'd on other grounds, 77 F.3d 1178 (9th Cir.
1996) ("[W]here a motion to dismiss raises [a res judicata] defense
not apparent on the face of the pleadings, . . . conversion to a
motion for summary judgment is proper.").

Footnote 38:

     Krijn v. Poque Simone Real Estate Co., 896 F.2d 687, 689 (2d
Cir. 1990) (quoting National Ass'n of Pharmaceutical Mfrs. v.
Ayerst Lab., 850 F.2d 904, 911 (2d Cir. 1988)).  In Demmert v.
Kootznoowoo, Inc., this court noted that it is inappropriate to
require a detailed showing of prejudice from a party that has not
had a reasonable opportunity to oppose a motion for summary
judgment.  See 960 P.2d 606, 612 (Alaska 1998).  But here, White
has shown no prejudice whatsoever.  Moreover, in Demmert, the
defendant first gave notice that its motion should be considered a
motion for summary judgment at oral argument; the plaintiffs
objected, arguing that there were genuine issues of material fact
and that additional discovery was needed.  See id. at 610-12.  By
contrast, White anticipated in his opposition to the state's motion
that it might be treated as a motion for summary judgment.  He does
not claim that the additional discovery was needed.  Finally, the
only potential issues of material fact he raises concern whether
White had applied to transfer interests in his leases at the time
of the Weiss injunction.  This evidence is not relevant to the
state's affirmative defenses. 

Footnote 39:

     White referred in oral argument to a letter indicating that
Micallef, one of the plaintiffs, had filed lease assignment
applications with the department, and to similar deposition
testimony by White.  White also referred to paragraph 18 of the oil
and gas lease contracts, which White argued required the state to
process lease assignments.

Footnote 40:

     Because we conclude that White's claim is barred by res
judicata, we need not address White's challenge to the superior
court's alternative conclusion that his action is functionally an
administrative appeal and, as such, is barred as untimely under
Appellate Rule 602(a)(2).