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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barry v. University of Alaska (02/27/2004) sp-5785

Barry v. University of Alaska (02/27/2004) sp-5785

     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

DOUGLAS K. BARRY,             )
                              )    Supreme Court No. S-10178
               Appellant,          )
                              )    Superior Court No.
     v.                       )    3AN-00-4736 CI
                              )
UNIVERSITY OF ALASKA,         )    O P I N I O N
                              )
               Appellee.      )    [No. 5785 - February 27, 2004]
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  John E. Havelock,  Law  Offices
          of   John   E.   Havelock,   Anchorage,   for
          Appellant.  Mark E. Ashburn, Ashburn & Mason,
          P.C., Anchorage, for Appellee.

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

          MATTHEWS, Justice.
          FABE,  Chief  Justice,  with whom  CARPENETI,  Justice,
joins, dissenting.

I.   INTRODUCTION

          The  question  presented  is whether  a  pre-retirement

release  bars  an  employees claim  for  a  later  breach  of  an

employers promise to recognize that the employee had twenty years

of  allowable  service.  We answer this question in the  negative

because  a release cannot govern the enforceability of a  promise

to be performed after the release.

II.  FACTS AND PROCEEDINGS

          When  his  retirement pay fell short of the  amount  he

expected,  Douglas Barry sued both the University of  Alaska  and

the  Teachers Retirement System.  We are concerned on appeal only

with   his   claim  against  the  University.   Barrys  complaint

presented three legal theories against the University:  breach of

contract, negligent record keeping, and promissory estoppel.   In

the  paragraph that follows we summarize the allegations  of  the

complaint.

          Barry  was employed by the University between 1976  and

July 1, 1997, but his employment was not continuous.  During this

period  Barry  held  faculty and non-faculty  positions  in  five

different  academic disciplines, with four research  centers  and

institutes,  and  with  the  Universitys  educational  television

network.    In  1996  the  University  authorized  a   retirement

incentive program (RIP) under which some University employees who

were eligible for retirement were offered a special benefit of up

to three years additional retirement credit.  Barry contacted Amy

Clifford, the University benefits coordinator, to make sure  that

he  had  twenty years of allowable service so he could take  full

benefit of the RIP program.  He was assured by her that he  would

have twenty years of service if he retired in the summer of 1997.

Relying on data supplied by the University, Barry applied for RIP

benefits.  When Barrys application was initially rejected,  Barry

appealed within University channels.  While awaiting the  outcome

of  the appeal he again sought and received confirmation from the

University that he had accumulated the necessary twenty years  of

service  for  retirement.   After negotiations,   the  University

agreed  that  Barry was entitled to RIP benefits.   Consequently,

Barry retired based on an understanding that the University would

assign  him  twenty  years  of actual service  credit  and  three

additional years of RIP credit.  Barry signed a release as a part

of this arrangement.  Subsequently the University determined that

it  had  overstated  Barrys  term of actual  service.   When  his

retirement  benefits were recalculated they  fell  short  of  the

amount  he  expected by some $816 per month.  Barry  acknowledged

that  his service may have been overstated by as much as  a  year

but  claimed  that he had additional service with the  University

and  outside  credit which he had not put forward for  credit  so

that  the  amount  of creditable time which  [he]  had  with  the

University is in doubt.  Barry would not have retired if  he  had

known that his retirement benefits were going to be reduced.   In

order  to retire he borrowed money to raise approximately $35,000

to  buy  back retirement time because he had previously withdrawn

sums from his retirement account to meet financial contingencies.

          The  University answered, admitting that there  was  an

incorrect notation of service data in some information maintained

by   the   University  concerning  [Barrys]  employment  at   the

University.  The University also explained the RIP program in its

answer as follows:

               Defendant  admits that the  RIP  was  an
          inducement   by  the  State  of   Alaska   to
          encourage  employees to consider  retirement.
          The   State   program  offered  an   enhanced
          retirement benefit without having to  put  in
          additional  years  of  work.   If   a   State
          employee had 20 years of service, the program
          added  it to the retirement benefit available
          to the employee.
          
The  University  denied many of the other allegations  of  Barrys

complaint  and  pled several affirmative defenses  including  the

defense that Barrys claims were barred by the release.

          The University moved for summary judgment as to all  of

Barrys  claims.  The sole basis for the motion was  the  release.

The University explained the background of the release:

               Barry  applied  for  the  RIP,  but  his
          application  was  denied by [the  University]
          because  [the  University] believed  that  it
          would  not  be able to demonstrate  any  cost
          savings as required by the RIP. . . .   Barry
          stated  his intent to appeal the decision  by
          [the   University]   to   reject   his    RIP
          application. . . .
          
               Counsel   for  [the  University],   Jean
          Sagan, engaged in settlement discussions with
          [Barrys  counsel] concerning Barrys  intended
          appeal  of  [the  Universitys]  decision   to
          reject  Barrys  RIP application.   Ms.  Sagan
          proposed  that if Barry signed a  release  of
          all  claims relating to or arising out of his
          employment relationship with [the University]
          prior  to July 1, 1997, then [the University]
          would  take  the extraordinary administrative
          steps   necessary  to  ensure   that   Barrys
          position was eligible to participate  in  the
          RIP.   The  proposed  resolution  would  also
          relieve  [the University] from the costs  and
          the  inconveniences  associated  with  Barrys
          pending  appeal and with any other litigation
          Barry  might  file  against [the  University]
          associated with either his employment or  his
          retirement from [the University].
          
The release provided in relevant part:

               In  consideration of the  University  of
          Alaskas  taking such administrative steps  as
          are   necessary   to  enable   the   position
          presently  held by Dr. Douglas  K.  Barry  to
          qualify   under   the   Universitys   current
          statutorily  authorized Retirement  Incentive
          Program,   Dr.  Barry  hereby  releases   the
          University of Alaska . . . from any  and  all
          claims . . . for damages, costs, expenses  or
          compensation for or on account of any damage,
          loss  or  injury . . . whether  developed  or
          undeveloped, resulting or to result, known or
          unknown,  past,  present, or future,  arising
          out  of  or directly or indirectly or in  any
          way  connected with his employment  with  the
          University  prior to July 1, 1997,  including
          but  not limited to those relating to tenure,
          retirement,   or   other  employee   benefits
          . . . .
          
The University argued that the comprehensive terms of the release

covered  Barrys  claims and that a reasonable  person  in  Barrys

position would have so understood the release.

          Barry  opposed  the  motion for summary  judgment.   He

argued, the parties intended that the release, taken as a part of

the  agreement  to retire, meant that Dr. Barry was  eligible  to

retire  with  twenty  years of service and  three  years  of  RIP

service,  and that neither party contemplated that Dr. Barry  was

foregoing his right to sue on the contract of retirement  itself.

Barry  contended  that if the release had  the  effect  that  the

University  claimed,  the  University  could  have  changed   its

position  after  he  retired and he would  have  been  without  a

remedy:  If the University is right in its interpretation of  the

Release,  then  the  University could  have  reduced  Dr.  Barrys

retirement  record to zero, causing his pension to be  terminated

by  TRS.   Barrys  opposition  is  summed  up  in  the  following

paragraph:

               A  release  is intended to  reflect  the
          intent  of  the  parties.  The  test  of  the
          enforceability  of a release is  whether,  at
          the time of signing the release, the releasor
          intended  to  discharge the claim  which  was
          subsequently discovered.  All the  facts  and
          circumstances  surrounding execution  of  the
          release  are  pertinent to  determining  this
          intent.  Also the determination of whether  a
          reasonable  person in the circumstances  then
          existing would have had such an intent.  Witt
          v.  Watkins,  579  P.2d 1065  (Alaska  1978).
          Reposing   the  question,  would   a   person
          retiring  from the University have reasonably
          intended  that the release would prevent  him
          or   her   from   suing  if  the   University
          subsequently  told  the  TRS  to  reduce  the
          benefit expected at the retirement?
          
Barrys  opposition  also  contained a  cross-motion  for  summary

judgment.

          The  University  replied to Barrys  opposition  to  its

motion  for  summary judgment and responded to his  cross-motion.

In  reply,  the University stressed the literal language  of  the

release:   The  language of the Release is plain and  direct;  it

provides  that  Barry releases [the University] from  all  claims

related to his retirement benefits.  In response to Barrys cross-

motion for summary judgment, the University filed an affidavit of

Amy  Clifford,  the  University benefits coordinator,  that  took

issue  with  Barrys  account of their dealings.   The  University

urged  that there were genuine factual disputes as to  the  facts

relating  to the substance of each of the three claims set  forth

by Barry in his complaint.

          In response to the Universitys opposition to the cross-

motion,  Barry  filed a reply that effectively withdrew  it.   He

concluded that, in light of Cliffords affidavit, there are indeed

questions  of  fact  that  prevent either  party  from  obtaining

summary judgment.

          Superior Court Judge John Reese granted the Universitys

motion  for  summary judgment.  Noting that Barry was represented

by  counsel at the time that he signed the release and  that  the

release was clear and unambiguous, the court concluded:   All  of

the  claims  raised  by [Barry] are directly  correlated  to  his

retirement  benefits or to his employment with  [the  University]

prior  to  July  1,  1997, and can not as  a  matter  of  law  be

litigated now.

          The  court also observed that in a proceeding involving

Barrys appeal from an adverse decision of the Teachers Retirement

Board,  the reviewing court, in interpreting board findings,  had

concluded  that  Barry should have known that  the  misadvice  he

received  was  incorrect.  The court observed that  it  would  be

inconsistent  with  this  decision  to  allow  Barrys  claims  to

proceed.







III. DISCUSSION

     A.   Standard of Review

          Grants  of  summary judgment are reviewed de  novo  and

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.1  Questions of law including the interpretation of contracts

are also reviewed de novo.2

     B.   Discussion

          On  appeal  Barry makes two claims.  He  asserts  first

that  the  release  does not preclude him from  asserting  claims

against  the University for breaching the terms of the retirement

agreement.   Second,  he argues that he was entitled  to  summary

judgment  against the University based on his claims of negligent

record  keeping  and false assurances that he had  received  from

University personnel that he would have twenty years of allowable

service independent of the RIP program.

          Barrys  second claim is without merit.  The  University

correctly  argues that in the superior court Barry conceded  that

questions  of fact prevented him from obtaining summary  judgment

on  his  cross-motion.  Since he abandoned pursuit of his  cross-

motion it is waived for purposes of this appeal.3

          With  respect  to Barrys first argument concerning  the

release, Barry challenges the application of the release both  on

factual  and legal grounds.  His factual argument is that whether

the  release  governed  the Universitys  conduct  in  taking  the

position  after he retired that he had less than twenty years  of

allowable  service depends on whether at the time of signing  the

release a reasonable person in his position would have understood

that subsequent conduct by the University of this nature would be

encompassed by the release.  He contends that at least a question

of  fact  exists  on  this  point.  His legal  argument  is  that

subsequent  conduct breaching the agreement could not  have  been

contemplated as coming within the terms of the release.

          In  response, the University relies on the terms of the

release  that encompass all claims relating to Barrys  retirement

benefits.   In addition, it stresses that Barry was at all  times

represented by counsel and thus the release was not the result of

disproportionate bargaining power.  The University contends  that

even if Barry had an agreement with the University to retire  for

a  specific  benefit the relevant fact is that such an  agreement

with  the University would necessarily relate to the time  period

prior  to  Barrys retirement on July 1, 1997, and  therefore  any

          claim concerning such a contract would be barred by the release.

The University also denies any such agreement:  It was never part

of  any agreement with the University that Barry would receive  a

certain monthly retirement from TRS or that he would retire  with

any particular amount of service credit.

          In  order to be entitled to summary judgment the moving

party must establish that there are no genuine issues of material

fact  and  that it is entitled to judgment as a matter  of  law.4

The summary judgment movant has the entire burden of proving that

his opponents case has no merit.5

          The University moved for summary judgment based only on

its  affirmative defense that the release barred  Barrys  claims.

Had it moved for summary judgment on the merits it would have had

to  show  the  absence of genuine issues of  fact  by  presenting

evidence negating Barrys claim that an agreement was made that he

would be credited with twenty years of service.6  A motion on the

merits  would have alerted Barry to the need to present  evidence

showing such an agreement.  But this process has not taken place.

          Since  they  have not been negated, we must  assume  as

true  the allegations in the complaint that an agreement was made

that  Barry  would  be credited with twenty  years  of  allowable

service.7   We  make  this  assumption  despite  the  Universitys

present contention in its brief on appeal that there was no  such

agreement.   The  University  did not  undertake  to  refute  the

allegations of the complaint in its motion.  It cannot on  appeal

convert  a  summary  judgment  motion  that  was  based   on   an

affirmative defense   concerning which the truth of most  of  the

allegations  of the complaint would be irrelevant   to  a  motion

challenging the truth of those allegations.  Further, in response

to  Barrys  cross-motion  for summary  judgment,  the  University

conceded  that there were genuine issues of material fact  as  to

whether there was an agreement between [the University] and Barry

that  [the University] would report to TRS that Barry had  twenty

years  of credit service at [the University] without the  benefit

          of the three RIP years.

          Assuming  then  an agreement that the University  would

credit  Barry  with twenty years of actual service,  the  release

could not immunize the University from a suit to enforce such  an

agreement.  The Universitys promise was to be performed after the

date of the release and the contract would be illusory if it were

governed by the release.  No reasonable person in Barrys position

would  have  understood the release language to bar  suit  for  a

breach of the contract occurring after the release.

          An  example can readily illustrate this.  We can assume

that  parties  to a contract settle a dispute in exchange  for  a

release  by the first party, and a promise by the second  to  pay

the  first $3,000 per month for life.  If the second party  after

the  settlement  decides to pay only $2,000 a month,  that  party

would  not  be insulated by the release from a suit by the  first

party  for  breach  of  the contract.  Such  a  result  would  be

contrary  to  the  concept that a contract  that  governs  future

conduct is binding and enforceable.8

          For  these  reasons  we conclude that  the  Universitys

motion for summary judgment was erroneously granted.

          The  trial  courts  reference to the  reviewing  courts

conclusion in the administrative appeal by Barry from the adverse

decision of the Teachers Retirement Board that Barry  should have

known  that  the  misadvice  was  incorrect  requires  additional

comment.   The  actual  language of  Superior  Court  Judge  Fred

Torrisis  opinion  on appeal from the decision  of  the  Teachers

Retirement Board is, Here, it could be said that Dr. Barry should

have known that the misadvice was incorrect, and that is what the

Board  found.   The actual findings of the board on  which  Judge

Torrisi   bases  this  conclusion  exonerate  the   Division   of

Insurance,  but do not purport to address the relative  fault  of

Barry  and  the University, as Barrys case against the University

was  not before the board.9  None of the parties briefs discussed

this aspect of the superior courts decision.  It may represent  a

          ruling that collateral estoppel effect should be given to the

quoted  statement.  If so, such a ruling seems  inappropriate  at

this  point,  as the University did not argue that the  statement

should  be given collateral estoppel effect.  There has  been  no

discussion as to whether the statement meets the requirements for

issue  preclusion  by  operation of the  doctrine  of  collateral

estoppel  as  applied to administrative agencies.10  Further,  if

collateral  estoppel effect is to be given, the  consequences  of

that  effect are both uncertain and unbriefed.  For these reasons

we  believe  that questions concerning the effect  of  the  board

proceeding and its resolution on appeal must be decided on remand

after appropriate briefing.

IV.  CONCLUSION

          For  the  above  reasons the judgment of  the  superior

court   is  REVERSED  and  this  case  is  REMANDED  for  further

proceedings.

FABE,   Chief  Justice,  with  whom  CARPENETI,  Justice,  joins,

dissenting.

          I  disagree with the courts decision because I  believe

that  a   reasonable person would have understood the release  to

waive  Barrys  right  to  assert his  three  claims  against  the

University.

          In  Philbin v. Matanuska-Susitna Borough, we held  that

in  determining whether a release bars a claim, the focus  is  on

what  a  reasonable  person  would have  understood  the  release

language to have meant.1  The release of claims and covenant  not

to sue signed by Barry was expansively worded:

               In  consideration of the  University  of
          Alaskas  taking such administrative steps  as
          are necessary to enable the position held  by
          Dr.  Douglas  K. Barry to qualify  under  the
          Universitys  current  statutorily  authorized
          Retirement  Incentive  Program,   Dr.   Barry
          hereby releases the University of Alaska .  .
          .  from  any  and all claims . . .  known  or
          unknown,  past,  present, or future,  arising
          out  of  or directly or indirectly or in  any
          way  connected with his employment  with  the
          University  prior to July 1, 1997,  including
          but  not limited to those relating to tenure,
          retirement or other employee benefits . . . .
          
               This Release of Claims and Covenant  Not
          to Sue is entered into by Dr. Barry knowingly
          and  voluntarily, with full understanding  of
          its consequences, following an opportunity to
          obtain independent review by legal counsel of
          his own choosing.
          
(Emphasis added.)

          In  my  view, a  reasonable person would interpret  the

plain language of this broad release to mean what it says:   that

Barry  released  all  claims arising out of  his  employment  and

retirement   in   exchange   for  the   University   taking   the

administrative  steps necessary to enable Barry  to  receive  RIP

benefits.  In Alyeska Pipeline Service Co. v. Shook, we concluded

that  an Alaska Wage and Hour Act claim against a former employer

was  barred  by  a  separation agreement in  which  the  employee

released  the  employer from any and all claims . .  .  known  or

          unknown, fixed or contingent, which EMPLOYEE may have or claim to

have  arising  from  his  employment  or  as  a  result  of  this

separation  of  employment.2  Barrys release  contains  similarly

broad  language.   The fact that neither Barrys final  retirement

benefit  nor the twenty years of service were actually  discussed

in the settlement negotiations or expressly listed in the release

agreement  does  not alter my conclusion that  the  release  bars

Barrys  claims.3   Barry signed a general  release  covering  all

claims,  known  and  unknown, just as  the  employee  in  Alyeska

Pipeline  did,  and  this broad language  indicates  the  parties

intent   to  settle  all  possible  claims  connected  to  Barrys

employment prior to July 1, 1997.4

          Moreover,  Barrys  claims  relating  to  his  years  of

service  were  reasonably ascertainable at the time of  executing

the   settlement.5   In  Martech  Construction   Co.   v.   Ogden

Environmental   Services,  Inc.,  we  held  that   although   the

contractors  alleged  breach  of  contract  occurred  after   the

settlement, it was the last step in a dispute that existed  prior

to  settlement, and the settlement sought to resolve  the  entire

transaction and thus barred the claim.6  We explained that  [t]he

claim  .  . . was an issue which was reasonably ascertainable  at

the  time  of  executing the settlement and Martech  should  have

anticipated  that  the  .  . . issue would  be  resolved  by  the

settlement   along   with  the  entirety   of   the   contractual

relationship.7     When   executing  the  settlement   with   the

University,  Barry  could  reasonably  have  ascertained  that  a

dispute  could  arise about his years of service  and  the  final

dollar  amount  of  his  benefits, given the  complexity  of  the

calculations  and  his  irregular  terms  of  service.   This  is

particularly the case because:  (1) as the employee, Barry was in

the  best position to know that he had actually worked about  two

years  less  than the statements erroneously indicated,  (2)  the

statements indicated that the periods of service were subject  to

verification, and (3) the statements indicated that the  employee

          should notify the employer of any discrepancies.  Even if Barry

could  not  himself calculate the exact number of  years  he  had

worked  or the dollar amount to which he was entitled,  he  could

have inserted into the release a provision reserving his right to

sue over discrepancies in the dollar amount based on his years of

service; because he did not, he has lost that right.8

          I agree with the court that if by virtue of the release

agreement   itself,  or  a  separate  contract  incorporated   by

reference into the release or entered into contemporaneously with

the release, the University promised Barry $3,388.90 per month in

retirement benefits, then that payment would be part of the  quid

pro  quo,  and  the  release would not bar a claim  that  such  a

contract  was  breached.9   But Barry  has  offered  no  evidence

indicating  that  the  University entered the  release  with  the

intent  to resolve a dispute over his years of actual service  as

opposed to his eligibility for the RIP.  As Barry himself  points

out  in  his  reply  brief, the dispute leading  to  the  release

related  not  [to] the question of whether he would  have  twenty

years  of  service  required to qualify for  retirement,  but  on

whether  a cost saving would accrue to the University by granting

Barry RIP benefits.

          And Barry has not offered adequate evidence that such a

promise  or separate retirement contract existed, much less  that

it  was entered into contemporaneously with the release agreement

or  that it was incorporated by reference into the release.   The

only  document  mentioning the $3,388.90 figure is  the  December

1996  Division  of  Retirement  and  Benefits  computer-generated

statement  projecting Barrys retirement benefits, but  this  does

not  evidence  the Universitys intent to enter into a  retirement

contract  with Barry for that amount.  It expressly  states  that

the  above  projection of your benefits is  an  estimate  only[,]

based  on  service and earnings reported to the system throughout

your  career.  Your actual benefit amount may differ somewhat  at

retirement because it will be based on employer verified  service

          and earnings.  Because of the conditional language in this

statement,  Barry had reason to know it was not an  offer  for  a

specific  dollar  amount;10  thus,  he  could  not  rely  on  the

statement  as  a  promise  to  pay  him  $3,388.90  per  month.11

Moreover,  the December 1996 Division of Retirement and  Benefits

statement  projecting  Barrys retirement benefits  was  sent  out

seven  months  before the parties signed the  release  agreement.

The  language  of the release indicates that neither  a  specific

monthly retirement benefit nor calculation of that benefit  based

on  a specific number of years of service was contemplated by the

parties.

          Finally, the court faults the University for failing to

refute  in its motion for summary judgment Barrys claim  that  he

had  an  agreement with the University to retire with a  specific

benefit.   But by attaching Jean Sagans affidavit to  its  motion

for  summary  judgment, the University satisfied  its  burden  of

making  a prima facie showing that the release did not contain  a

promise  to  pay  Barry  a  specific  dollar  amount.12    Sagans

affidavit  states:  The pre-litigation settlement  offer  by  the

University did not involve any guarantees or assurances to  Barry

by  the  University as to what monthly retirement  benefit  Barry

would receive from the State of Alaska.13  Barry has not met  his

burden of setting forth evidence that reasonably tends to dispute

Sagans  statement.14   In  support  of  his  opposition  to   the

Universitys  motion for summary judgment, Barry  offered  a  two-

paragraph   affidavit  authenticating  the   attached   TRS   and

University  records.  However, that affidavit does  not  squarely

assert  that the University specifically promised Barry  that  he

would  receive a particular stream of income.  Rather, it  refers

only  to Barrys belief he would receive retirement benefit[s]  of

$3,388.90 per month because he had put in twenty years  with  the

University.    Because   Barrys  subjective   belief   alone   is

insufficient to establish that he had a contract for  a  specific

dollar  amount,15  Barrys affidavit does not  adequately  dispute

          Sagans affidavit.  As a matter of law, then, the evidence offered

by   Barry   does  not  support  a  theory  that  the  University

contemporaneously formed a valid contract to pay Barry a specific

retirement amount each month or that the release agreement itself

contained  or  incorporated  such  a  promise.   Because   Sagans

affidavit  satisfied  the Universitys burden  of  establishing  a

prima  facie  case  that the University  did  not  enter  into  a

contract to pay Barry a specific retirement benefit, and  because

Barry  did not adequately respond to this evidence, the  superior

court properly granted summary judgment to the University.

          For these reasons, I believe that all of  Barrys claims

are barred by the release, and I respectfully dissent.

_______________________________
     1     Therchik  v.  Grant Aviation, Inc., 74 P.3d  191,  193
(Alaska 2003) (citation omitted).

     2    Id.

     3    Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (We
will  not  consider arguments that parties fail to raise  in  the
lower  court, let alone arguments that they have conceded  below,
unless the trial court committed plain error.).

     4    Alaska R. Civ. P. 56(c).

     5     Braund,  Inc.  v. White, 486 P.2d 50, 54  n.5  (Alaska
1971).

     6     See, e.g., McWilliams v. Bolstridge, 644 P.2d 240, 241
(Alaska  1982) (In order to meet their initial burden of  showing
that  the  counterclaim was without merit, [the movants]  had  to
negate it, as, for example, by filing an affidavit . . . that  no
such agreement was made.  This they failed to do.).

     7     See,  e.g.,  Jones v. Wadsworth, 791 P.2d  1013,  1015
(Alaska  1990).  Under review was a grant of summary judgment  in
favor  of the defendant on the affirmative defense that the  tort
statue of limitations had run.  We held that for purposes of this
appeal  we  must assume as true the allegations of the plaintiffs
complaint that the defendant had made certain express promises.

     8     See Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289
(Alaska 2001)  (future performance under an agreement not  barred
by release clause in same agreement).

     9     We  set out here the relevant findings of the Teachers
Retirement  Board.  After noting that the first two  elements  of
Barrys  claim of estoppel against the board were assertion  of  a
position by the board by conduct or words and reasonable reliance
by Barry, the board wrote:

               Dr.   Barry  has  not  proven   by   the
          preponderance of the evidence that he has met
          each  of the four elements, particularly  the
          first two elements noted above.
          
               First, while UAA may well have erred  in
          recording   Dr.  Barrys  work  history,   the
          Division  did  not  independently   err   and
          thereby  assert  a  position.   It   is   the
          employer  which provides employment  records.
          2   AAC   36.840.    The  Division   has   no
          independent basis to conclude that employment
          records  are  correct, although  as  in  this
          case,  it  may  well  seek  verification   of
          records  when certain red flags  occur  in  a
          records check.  In any event, the prospective
          retiree is advised that the employer, not the
          Division,   is   the  source  of   employment
          information.   The  distinction  between  the
          Divisions  responsibilities in  administering
          TRS  and  the employer has been confirmed  in
          cases  such as Holmberg v. State Division  of
          Risk  Management, 796 P.2d 823 (Alaska 1990).
          The  Division, unlike the Crum [v. Stalnaker,
          936  P.2d  1254 (Alaska 1997)] circumstances,
          did not cause, by omission or commission, Dr.
          Barry    to   retire   based   on   erroneous
          information.
          
               Second, Dr. Barry has not demonstrated a
          reasonable reliance upon information provided
          by   the  Division  given  notice  that   the
          employer   is   the  source   of   employment
          information and also given the fact that,  at
          least  with  respect  to certain  periods  of
          time, Dr. Barry was the person with the  best
          knowledge  of  when  he  was  not  employed--
          particularly the erroneously reported  period
          of  uninterrupted  service between  1980  and
          1985.
          
     10     Judge  Torrisis  statement  did  not  purport  to  be
independent fact finding; it was a characterization of  what  the
board  found.  Thus the rules governing issue preclusion  arising
out  of  facts  found  in  administrative  proceedings  must   be
consulted.   See generally Restatement (Second) of Judgments   83
(1982); Johnson v. State, Dept of Fish & Game, 836 P.2d 896, 906-
09  (Alaska  1991) (a determination of the appropriate preclusive
effect of administrative decisions is possible only on a case  by
case analysis).

1    991 P.2d 1263, 1266-67 (Alaska 1999).

2     978  P.2d  86, 88 n.2, 89 (Alaska 1999); see  also  Martech
Constr.  Co. v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1151-52
(Alaska  1993)  (holding that settlement agreement purporting  to
cover  claims  of  any nature whatsoever between  contractor  and
subcontractor  acted to bar subsequent claim  to  recover  amount
paid by subcontractor to third-party supplier of switchgear).

     3     See Martech, 852 P.2d at 1150 n.8 ([T]he fact that the
switchgear was not discussed cannot be interpreted as a  positive
inference that the release was not intended to address it.).

     4     See  Alyeska Pipeline Serv. Co., 978 P.2d at  89  (The
parties  broad  language  reveals an  intention  to  resolve  all
possible  claims  arising  from  Shooks  employment.);  see  also
Martech,  852 P.2d at 1152 (The broad language used implies  that
claims not specifically contemplated are settled.).

     5     Martech, 852 P.2d at 1151-52 (quoting Petroleum Sales,
Ltd. v. Mapco Alaska, Inc., 687 P.2d 923, 930 (Alaska 1984)).

     6    Id. at 1151.

     7    Id. at 1151-52 (quoting Mapco, 687 P.2d at 930).

8     See  Alyeska  Pipeline Serv. Co., 978  P.2d  at  89  ([A]ny
claims  not  specifically reserved must be considered settled  by
the  agreement.); Martech, 852 P.2d at 1152 (The  broad  language
used  implies  that  claims  not  specifically  contemplated  are
settled.  .  .  .   There are no catch-all  phrases  to  preserve
omitted claims as there are to abandon them.).

     9     See,  e.g.,  Finch v. Greatland Foods, Inc.,  21  P.3d
1282,  1289  (Alaska 2001) (holding that prior release  agreement
did  not  bar subsequent claims that employer violated settlement
agreement itself).

10    See  Copper  River  Sch. Dist. v. Traw,  9  P.3d  280,  283
(Alaska  2000)  (Section  26  [of the Restatement  of  Contracts]
informs us that [a] manifestation of willingness to enter into  a
bargain  is  not an offer if the person to whom it  is  addressed
knows  or  has reason to know that the person making it does  not
intend  to  conclude  a  bargain until  he  has  made  a  further
manifestation  of  assent.  ) (quoting  Restatement  (Second)  of
Contracts   26  (1981)); Davis v. Dykman,  938  P.2d  1002,  1006
(Alaska  1997)  (The  formation of a valid contract  requires  an
offer encompassing all essential terms, unequivocal acceptance by
the   offeree,  consideration,  and  an  intent  to  be  bound.);
Restatement  (Second) of Contracts  33(3) (1981) (The  fact  that
one  or  more  terms  of  a proposed bargain  are  left  open  or
uncertain  may  show  that a manifestation of  intention  is  not
intended to be understood as an offer or as an acceptance.).

     11    See  Perreca v. Gluck, 295 F.3d 215, 225-26  (2d  Cir.
2002)  (To the extent that plaintiffs suggest that this statement
of  projected  benefits alone constituted  a  promise  supporting
their claim of promissory estoppel, we reject their claim .  .  .
[i]n  light of the prominent disclaimer printed on the  statement
that specifically cautioned Perreca that [a]ctual benefits are  .
.  .  subject to verification before any payments are  authorized
.  . . .); Simonds v. N.Y. State Teachers Ret. Sys., 349 N.Y.S.2d
140,  143  (N.Y. App. Div. 1973) ([R]espondents were not estopped
from lowering petitioners benefits since their original statement
to  him  was  an  estimate  only  and  expressly  based  upon  an
assumption  which  proved to be untrue.); see also  Galanthay  v.
N.Y. State Teachers Ret. Sys., 409 N.E.2d 945, 946 (N.Y. 1980).

     12   See Himschoot v. Dushi, 953 P.2d 507, 509 (Alaska 1998)
(The  moving  party  has the entire burden of  proving  that  his
opponents  case  has  no merit.) (citation  and  quotation  marks
omitted).

     13    In addition, the University attached to its opposition
to Barrys motion to strike, and to its reply to Barrys opposition
to  its  motion  for  summary judgment,  an  affidavit  from  Amy
Clifford,  which states:  I did not inform Barry  that  he  would
have twenty (20) years of credit service at UA at the end of FY97
without  the three (3) RIP years.  The three (3) RIP  years  were
used in my calculation to get Barry to twenty years of service at
the  end  of  FY97. . . .  I never suggested to  Barry  what  the
amount  of  his  retirement benefit would be from  the  State  of
Alaska.  That is a calculation which the State performs, not UA.

     14    See Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582,
586  (Alaska  2001)  (The non-movant is  required,  in  order  to
prevent  entry  of summary judgment, to set forth specific  facts
showing  that [s]he could produce admissible evidence  reasonably
tending  to dispute or contradict the movants evidence, and  thus
demonstrate that a material issue of fact exists.) (alteration in
original)  (citation and quotation marks omitted);  Martech,  852
P.2d  at  1149  n.7 ([A]n adverse party may not  rest  upon  mere
allegations, but must set forth specific facts showing that there
is a genuine issue of material fact. To create a genuine issue of
material  fact  there must be more than a scintilla  of  contrary
evidence.) (citations omitted).

     15    See, e.g., Boone v. Frontier Ref., Inc., 987 P.2d 681,
686  (Wyo. 1999) (Boones subjective belief that he could  not  be
discharged unless just cause existed was insufficient to create a
contract for continued employment.).