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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.).
