author: MATTHEWS, Justice. FABE, Chief Justice,

text:
    Douglas K. BARRY, Appellant, v. UNIVERSITY OF ALASKA, Appellee.
    No. S-10178.
    Supreme Court of Alaska.
    Feb. 27, 2004.
    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.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

The question presented is whether a pre-retirement release bars an employee’s claim for a later breach of an employer’s 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. Barry’s 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 University’s 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 Barry’s 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 Barry’s 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 [Barry’s] 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 Barry’s complaint and pled several affirmative defenses including the defense that Barry’s claims were barred by the release.

The University moved for summary judgment as to all of Barry’s 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 [Barry’s counsel] concerning Barry’s intended appeal of [the University’s] decision to reject Barry’s 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 Barry’s position was eligible to participate in the RIP. The proposed resolution would also relieve [the University] from the costs and the inconveniences associated with Barry’s 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 Alaska’s taking such administrative steps as are necessary to enable the position presently held by Dr. Douglas K. Barry to qualify under the University’s 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 Barry’s claims and that a reasonable person in Barry’s 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. Barry’s retirement record to zero, causing his pension to be terminated by TRS.” Barry’s 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?

Barry’s opposition also contained a cross-motion for summary judgment.

The University replied to Barry’s 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 Barry’s cross-motion for summary judgment, the University filed an affidavit of Amy Clifford, the University benefits coordinator, that took issue with Barry’s 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 University’s opposition to the cross-motion, Barry filed a reply that effectively withdrew it. He concluded that, in light of Clifford’s affidavit, “there are indeed questions of fact that prevent either party from obtaining summary judgment.”

Superior Court Judge John Reese granted the University’s 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 Barry’s 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 Barry’s 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. Questions of law including the interpretation of contracts are also reviewed de novo.

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.

Barry’s 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.

With respect to Barry’s 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 University’s 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 Barry’s 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 Barry’s 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. The summary judgment movant “has the entire burden of proving that his opponent’s case has no merit.”

The University moved for summary judgment based only on its affirmative defense that the release barred Barry’s 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 Barry’s claim that an agreement was made that he would be credited with twenty years of service. 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. We make this assumption despite the University’s 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 Barry’s 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 University’s 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 Barry’s 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.

For these reasons we conclude that the University’s motion for summary judgment was erroneously granted.

The trial court’s reference to the reviewing court’s 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 Torrisi’s 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 Barry’s case against the University was not before the board. None of the parties’ briefs discussed this aspect of the superior court’s 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 es-toppel 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. 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 court’s decision because I believe that a reasonable person would have understood the release to waive Barry’s 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.” The release of claims and covenant not to sue signed by Barry was expansively worded:

In consideration of the University -of Alaska’s taking such administrative steps as are necessary to enable the position held by Dr. Douglas K. Barry to qualify under the University’s current statutorily authorized Retirement Incentive Program, Dr. Barry hereby releases the University of Alaska ... from, any and all claims ... knoum 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.” Barry’s release contains similarly broad language. The fact that neither Barry’s 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 Barry’s claims. 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 Barry’s employment prior to July 1,1997.

Moreover, Barry’s claims relating to his years of service were “ ‘reasonably ascertainable’ at the time of executing the settlement.” In Martech Construction Co. v. Ogden Environmental Services, Inc., we held that although the contractor’s 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. 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.” 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.

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. 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 Barry’s retirement benefits, but this does not evidence the University’s 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; thus, he could not rely on the statement as a promise to pay him $3,388.90 per month. Moreover, the December 1996 Division of Retirement and Benefits statement projecting Barry’s 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 Barry’s claim that he had an agreement with the University to retire with a specific benefit. But by attaching Jean Sagan’s 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. Sagan’s 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.” Barry has not met his burden of setting forth evidence that reasonably tends to dispute Sagan’s statement. In support of his opposition to the University’s 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 Barry’s “belief he would receive retirement benefit[s] of $3,388.90 per month because he had put in twenty years with the University.” Because Barry’s subjective belief alone is insufficient to establish that he had a contract for a specific dollar amount, Barry’s affidavit does not adequately dispute Sagan’s 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 Sagan’s affidavit satisfied the University’s 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 Barry’s claims are barred by the release, and I respectfully dissent.

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

      . Id.

      . 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.”).

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

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

      . 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.”).

      . 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 statute of limitations had run. We held that "for purposes of this appeal” we must "assume as true” the allegations of the plaintiff's complaint that the defendant had made certain express promises.

        .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).

      . We set out here the relevant findings of the Teachers' Retirement Board. After noting that the first two elements of Barry’s claim of estop-pel 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. Barry’s 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 Division's 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.

      . Judge Torrisi’s 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, Dep't of Fish & Game, 836 P.2d 896, 906-09 (Alaska 1991) ("a determination of the appropriate pre-clusive effect of administrative decisions is possible only on a case by case analysis”).

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

      . 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).

      . 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.”).

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

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

      . Id. at 1151.

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

      . 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.”).

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

      . 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.”).

        . 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., 42 A.D.2d 470, 349 N.Y.S.2d 140, 143 (N.Y.App.Div.1973) ("Respondents were not estopped from lowering petitioner's 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., 50 N.Y.2d 984, 431 N.Y.S.2d 472, 409 N.E.2d 945, 946 (1980).

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

      . In addition, the University attached to its opposition to Barry's motion to strike, and to its reply to Barry's 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.”

      . See Lincoln v. Interior Reg'l 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 mov-ant's 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).

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


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Kelly RUCKLE, Appellant, v. ANCHORAGE SCHOOL DISTRICT and State of Alaska, Department of Education and Early Development, Appellees.
    No. S-10422.
    Supreme Court of Alaska.
    Feb. 27, 2004.

      Robert K. Stewart, Jr., Davis Wright Tre-maine LLP, Anchorage, for Appellant.
    Howard S. Trickey and Matthew Singer, Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee Anchorage School District.
    G. Ken Truitt, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska, Department of Education and Early Development.
    Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Kelly Ruckle challenged the decision of the Anchorage School District to grant its school transportation contract to First Student, Inc. and sought a declaration voiding the state’s regulation governing pupil transportation contracts. The superior court dismissed with prejudice Ruckle’s claims against both the school district and the state for lack of subject matter jurisdiction and denied her request to file an amended complaint. We agree with the superior court that Ruckle does not have citizen-taxpayer standing with respect to her claims against the district. However, we conclude that the superior court erred in refusing to grant Ruckle leave to file an amended complaint. Because we remand on these grounds, we find it unnecessary to determine whether the superior court’s dismissal with prejudice was appropriate.

II. FACTS AND PROCEEDINGS

On October 4, 2000 the Anchorage School District (ASD), seeking a school bus company to transport its students, issued a Request for Transportation Proposals (RFP). It received five bids for the five-year contract. According to Ruckle, the lowest and only responsive bid was submitted by Laidlaw Transit, Inc., ASD’s incumbent provider of school bus service. The second lowest bidder was First Student, Inc. Despite the alleged deficiencies in its bid, ASD certified First Student’s bid as responsive. ASD permitted First Student to match Laidlaw’s bid price and decided that an award to First Student would be in the district’s best interest. A notice of intent to award the school bus contract to First Student was issued on January 19, 2001.

Laidlaw then instituted an action against ASD and First Student, asking the court, among other things, to invalidate First Student’s proposal and enjoin ASD from contracting with them. Laidlaw requested declaratory and injunctive relief, and money damages. On May 18, 2001 Superior Court Judge Peter A. Michalski issued an order converting Laidlaw’s action to an administrative appeal, since many of the claims in Laid-law’s complaint were based on the administrative decisions of ASD. Judge Michalski bifurcated and stayed any claims which could not be reached as part of the administrative appeal and halted all discovery until the appeal could be resolved.

Laidlaw then approached Kelly Ruckle to determine if she would be interested in commencing litigation in this matter. Kelly Ruckle was at that time employed as a secretary by Laidlaw’s law firm, Hartig Rhodes Hoge & Lekisch and was also a taxpayer in the Municipality of Anchorage and the mother of two children who attended ASD schools and who rode school buses operated by First Student. She was referred to Davis Wright Tremaine LLP for representation. On July 23, 2001 Ruckle filed a complaint against ASD and the State of Alaska, Department of Education and Early Development (state), alleging nearly all of the same claims against ASD as Laidlaw had. However, whereas Laidlaw did not challenge any of the state’s conduct, Ruckle argued that one of its regulations, 4 Alaska Administrative Code (AAC) 27.085, violates the State Procurement Code, AS 36.30, that it was adopted without proper statutory authority, and that it constitutes a standardless delegation of authority. In addition, while Laidlaw sought money damages, Ruckle requested only declaratory and in-junctive relief. Ruckle’s complaint was assigned to Superior Court Judge Mark Rind-ner.

Instead of filing an answer, ASD filed a motion to dismiss, which was later joined by the state, which argued that Ruckle did not have citizen-taxpayer standing and that the complaint should therefore be dismissed under Alaska Civil Rule 12(b)(1) for lack of subject matter jurisdiction. Ruckle opposed, arguing that she had standing as a citizen and taxpayer and as a member of the class of persons the procurement statute was designed to protect.

Judge Rindner granted the motion to dismiss, which prompted Ruckle to request reconsideration. She argued that she should be permitted to litigate her claims against the state because Laidlaw was not pursuing those claims, and therefore they would likely evade review. Judge Rindner denied Ruck-le’s motion for reconsideration, but before receiving notice of the denial, Ruckle filed an amended complaint in which she alleged that she had interest-injury standing. ASD asked the court to strike Ruckle’s amended complaint because it was filed without leave of the court. ASD also argued that Ruckle should not be permitted to re-allege citizen-taxpayer standing since her first complaint had already been dismissed for lack of such standing. Ruckle opposed ASD’s motion, contending that she had timely filed her amended complaint pursuant to Alaska Civil Rule 15(a) and that, in the absence of an Alaska rule barring the filing of an amended pleading after dismissal but before entry of judgment, she should be permitted to amend her complaint as a matter of course. In response, ASD maintained that, even if it might be permissible for Ruckle to amend her complaint, she should be required to request leave of the court and such leave should be denied since amendment would be futile and she had failed to take advantage of earlier opportunities to do so.

Ruckle then moved for leave to supplement her opposition to ASD’s .motion to strike, informing the court that her daughter had been in an accident involving a First Student bus on December 6, 2001, thereby clarifying her standing status and demonstrating “the legitimate concerns she has concerning the safety of the school buses operated by First Student under the contract awarded it by the ASD.” Judge Rindner granted ASD’s motion to strike the amended complaint and advised Ruckle that, if she still believed she had interest-injury standing, she could file a complaint seeking relief appropriate to such a claim. On the same day, February 4, 2002, Judge Rindner entered final judgment in the matter, dismissing with prejudice Ruckle’s complaint for lack of subject matter jurisdiction.

Finally, Ruckle filed a motion seeking to amend the judgment, arguing that the court should have dismissed her complaint without prejudice so as to allow her to file a new complaint without running afoul of res judi-cata. That motion was also denied and Ruckle appealed.

III. STANDARD OF REVIEW

We review de novo a superior court’s decision to dismiss a complaint for lack of subject matter jurisdiction.

Whether an amended complaint may be filed after dismissal without leave of the court is a question of law. “We scrutinize questions of law under a de novo or independent judgment standard of review. When reviewing a question of law, it is our ‘duty to adopt the rule of law that is most persuasive in light of precedent, reason and policy.’ ”

We review under the abuse of discretion standard a superior court’s decision to deny a plaintiff leave to file an amended complaint and a superior court’s decision to dismiss a complaint with prejudice. “We will reverse a ruling for abuse of discretion only when left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.”

IV. DISCUSSION

A. The Superior Court Did Not Err in Dismissing Ruckle’s Complaint Against ASD for Lack of Citizen-Taxpayer Standing.

In dismissing Ruckle’s original complaint against ASD, the superior court found that Ruckle could not satisfy the requirements of citizen-taxpayer standing and, therefore, could not pursue her claims against ASD under the theory advanced in the original complaint. Ruckle had requested declaratory and injunctive relief, both of which the superior court could grant pursuant to AS 22.10.020. As the basis for her complaint, Ruckle alleged that she “is a resident of Anchorage, Alaska and a taxpayer in the municipality of Anchorage.” ASD immediately moved to dismiss, arguing that Ruck-le had not demonstrated sufficient interest-injury or citizen-taxpayer standing and, therefore, that the court should dismiss her action for lack of subject matter jurisdiction.

We have held that “all that is required of a complaint seeking declaratory relief is a simple statement of facts demonstrating that the superior court has jurisdiction and that an actual justiciable case or controversy is presented.” Under our case law, the “actual case or controversy” language encompasses a number of more specific reasons for not deciding cases, including lack of standing, mootness, and lack of ripeness. At issue in this case is whether Ruckle has standing to pursue her claims against ASD and the state. We have observed that “[standing in our state courts is not a constitutional doctrine; rather, it is a rule of judicial self-restraint based on the principle that courts should not resolve abstract questions or issue advisory opinions. The basic requirement for standing in Alaska is adversity.”

We have recognized two forms of standing: interest-injury and citizen-taxpayer. In her original complaint, Ruckle only relied on citizen-taxpayer standing. Under Alaska law, to establish such standing a taxpayer or citizen need only show that the case in question is “one of public significance” and the plaintiff is “appropriate in several respects.” This “Appropriateness has three main facets: the plaintiff must not be a ‘sham plaintiff with no true adversity of interest; he or she must be capable of competently advocating his or her position; and he or she may still be denied standing if ‘there is a plaintiff more directly affected by the challenged conduct in question who has or is likely to bring suit.’ ”

The superior court focused on the third factor used to determine Ruckle’s “appropriateness” as a plaintiff — whether another plaintiff is more directly affected by the action in question and has brought suit or is likely to bring suit — and explicitly declined to rule on Ruckle’s fulfillment of the remaining two appropriateness requirements. Because Laidlaw had already raised nearly identical claims against ASD, the superior court concluded:

Ruckle clearly fails the third aspect of the “appropriate” plaintiff test. There is another plaintiff more directly affected by the challenged conduct in question who has brought suit. This court need not hypothetically question whether another plaintiff exists who may bring forth suit against ASD. Laidlaw filed a lawsuit against ASD almost six months prior to Ruckle’s lawsuit. Laidlaw was the former provider of transportation for ASD and is more directly affected by ASD’s awarding the contract to First Student.

According to the court, “Ruckle lacks standing as a citizen-taxpayer because another plaintiff more directly affected by the complained of conduct, Laidlaw, has already filed a virtually identical lawsuit concerning the subject matter of this case. Because Ruckle lacks standing, the court lacks subject matter jurisdiction and cannot address Plaintiffs claims.”

Ruckle argues that the superior court erred in its determination that she was not the most appropriate plaintiff to bring this suit. She contends that, because citizens comprise the class specifically protected by the public procurement system, the “most appropriate plaintiff’ in any challenge to the award of a public contract should.be selected from that class of people. In support of her argument, Ruckle cites several cases which hold that all members of the public, not the bidders, are the intended beneficiaries of the competitive public bidding system. In McBirney & Associates v. State, this court explained that the purposes of the competitive public bidding system are:

to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to insure that the [state] receives the best work or supplies at the most reasonable prices practicable.
... [T]he requirement of public bidding is for the benefit of property holders and taxpayers, and not for the benefit of the bidders; and such requirements should be construed with the primary purpose of best advancing the public interest[]

By virtue of her position as both a citizen and a taxpayer, Ruckle argues that she will best represent the broad set of interests common to other citizens and taxpayers of Anchorage, while Laidlaw will represent only its own economic interests.

Ruckle also cites a number of cases from other jurisdictions which she argues support the proposition that taxpayers, rather than bidders, should be granted standing to challenge flaws in public bidding systems. These eases do support the proposition that citizen-taxpayers have standing to challenge the results of public bidding systems! However, none of these cases involve a situation, such as the one at bar, where both the bidder and a citizen-taxpayer have filed suit on the same issue, and three of the cases hail from jurisdictions where bidders are only permitted to challenge the bid procedures of municipalities in which they are also municipal taxpayers. This is not the law in Alaska. Here, unsuccessful bidders may administratively appeal bid decisions and may pursue bid-related claims against a state agency in court. Furthermore, ASD does not argue that Ruckle could never establish standing based on her citizen-taxpayer status, but rather it contests the idea that both Ruckle’s and Laidlaw’s claims should be permitted to proceed at the same time.

ASD also contends that Ruckle’s claim that, as a citizen and taxpayer, she is a more appropriate plaintiff than Laidlaw “misconstrues the test for citizen-taxpayer standing, and relies on the unsupportable presumption that an ordinary citizen is more affected by the award of the District’s $45 million transportation contract than is the incumbent contractor who lost the contract.” ASD compares Laidlaw’s request for money damages and its right to “recover money for bid preparation costs if it can show that the government agency failed to consider its bid fairly and honestly” to Ruckle’s claim for declaratory and injunctive relief, and maintains that it is untenable that Ruckle could be more directly affected by the outcome of this litigation than Laidlaw. Furthermore, ASD questions Ruckle’s claim that she represents different and broader interests than Laid-law, and argues that “[ejvery one of Ruckle’s alleged defects in the procurement process were previously alleged by Laidlaw [and][t]he relief that Ruckle seeks is the same relief that Laidlaw seeks.”

Finally, Ruckle argues that she should be permitted to proceed with her lawsuit despite Laidlaw’s pending appeal because the issues of “whether the First Student proposal was nonresponsive and whether the ASD’s best interest determination was flawed” might evade review in Laidlaw’s administrative appeal. Ruckle claims that under 4 AAC 27.085(e), a finding that a bid is nonrespon-sive can only be challenged by that bidder, not by a competing bidder, such as Laidlaw. In addition, Ruckle argues that 4 AAC 27.085(g) limits challenges by unsuccessful bidders to fraud or mathematical errors and does not permit a bidder to contest an award on the basis that a best interests determination was flawed. However, while 4 AAC 27.085(e) and (g) limit the bases upon which a bidder can move the school board for reconsideration, a bidder can seek judicial review of the board’s decision by the superior court under Alaska Rule of Appellate Procedure 602(a)(2).

The analysis of ASD and the superior court is compelling. Not only is it clear that another party has brought suit to vindicate these interests, but under the circumstances we agree that Laidlaw is the more appropriate plaintiff in this case. As the superior court notes, we have encouraged trial courts to evaluate the appropriateness of plaintiffs on a case-by-case basis. In this situation, we agree that allowing Ruckle to proceed with her claims against ASD would be unnecessarily duplicative given Laidlaw’s enormous economic incentive and the fact that it has already filed suit. Because Laidlaw has raised similar, if not identical, claims against ASD in its lawsuit, and because Ruckle has been unable to demonstrate a likelihood that these issues will evade review during the course of the administrative appeal, we affirm the superior court’s decision to dismiss Ruckle’s complaint against ASD for lack of citizen-taxpayer standing.

B. After Dismissal Ruckle Was Not Entitled To Amend Her Complaint Without Leave of the Court.

After entry of the courts order dismissing her claims against ASD and the state, Ruckle filed an amended complaint. Several times prior to filing, Ruckle informed the court that she planned to exercise her right under Civil Rule 15(a) to file an amended complaint. The amended complaint differed from the original complaint only in that, for the first time, Ruckle alleged interest-injury standing.

Judge Rindner granted ASD’s motion to strike Ruckle’s amended complaint. He stated that he would proceed as though Ruckle had requested leave to file an amended complaint, but he denied Ruckle’s motion because the court dismissed the case for lack of subject matter jurisdiction. Judge Rindner noted that “[i]f Ruckle believes she has a claim based on interest-injury standing she may file a separate complaint seeking relief appropriate to that claim.”

Ruckle argues that the superior court erred in striking her complaint, because she should have been permitted to amend her complaint once as a matter of course without seeking leave of the court since a responsive pleading had never been served as required by Civil Rule 15(a). Whether Rule 15(a) permits amendment without leave of the court after an order of dismissal has been entered is a question of first impression in Alaska.

Essentially, Ruckle argues that, because a responsive pleading was never filed, we should liberally construe Rule 15(a) to allow her to amend her complaint without leave of the court within a reasonable time of service of the order dismissing the complaint. The parties agree that there is no Alaska rule explicitly addressing this issue and that the federal courts are divided as to whether the right to amend a pleading under Rule 15(a) without leave of the court survives a dismissal order. Three main approaches to this question have been adopted by other courts and were recently summarized in an Eastern District of Pennsylvania decision, United States v. Union Corp.

Under the first approach, which has been applied in some Ninth Circuit cases, “the right to amend once as a matter of course never terminates, even if the original pleading is dismissed by the district court, until a responsive pleading is filed.” As the Union Corp. court explained, “[t]his approach is based on a rigid, literal reading of the language of Rule 15(a) that the right to amend continues until a responsive pleading is filed, regardless of what might happen prior to the filing of that responsive pleading; because the rule is silent as to the effect of an intervening dismissal of that pleading, such action had no effect on the right to amend.” Neither party supports the adoption of this approach.

The second approach, which has been followed in the majority of circuits, is that the right to amend without leave terminates upon the entry of an order of dismissal. ASD champions this rule because it gives substantial effect to a lower court’s determination that a claim should be dismissed, it prevents a party from repleading a claim which has already been disposed of, and it “encourages litigants not to sleep on their rights and waste judicial resources by waiting until after dismissal to amend their complaints.”

Ruckle prefers the third approach, in which the right to amend survives the granting of a motion to dismiss but is extinguished by the entry of judgment. This approach has been adopted in certain situations by the Seventh and Ninth Circuits and “is based on principles of finality — only after the entire action has been dismissed in a final and appealable order should the right to amend terminate, at which point the plaintiff either may appeal or seek leave of the district court to reopen the case so she may pursue an amended complaint.” Ruckle argues that this approach best comports with the plain language of Rule 15(a), that it would be most consistent with the superior court’s order in this case recognizing Ruckle’s reservation of her right to file an amended complaint, and that it is most closely aligned with Alaska’s approach to finality for purposes of appeal. Finally, Ruckle argues that “the rule which [she] advances promotes even more consistency and certainty than [the rule] adopted by certain of the federal circuits which rely upon the heavily criticized test of whether a particular order is a final decision which ends litigation on the merits.”

There are strong arguments for each interpretation of Rule 15(a). However, we believe that the majority rule — the one espoused by ASD- — is the one which best reflects our longstanding concerns with consistency, fairness, and finality, and which accords appropriate deference to the superior court. Adoption of this rule would allow an opposing party to rely on the finality of a dismissal, while providing an opportunity to respond to a request to amend should the circumstances so require. It would also facilitate an efficient use of resources, require parties to exercise their rights sooner rather than later, and prevent the unnecessary over extension of litigation. While this rule would undoubtedly restrict the plaintiffs right to amend without leave, we have long held that leave to amend should not usually be difficult to obtain. Thus, where plaintiffs have demonstrated valid reasons for amending a pleading, they will be permitted to do so. We believe that adoption of this rule strikes the appropriate balance among these competing concerns, and we therefore adopt it. We must accordingly reject Ruckle’s argument that she was entitled to file her amended complaint without seeking leave of the court.

C. The Superior Court Erred in Denying Ruckle Leave To File an Amended Complaint.

Ruckle sought to file an amended complaint in order to demonstrate an alternate basis for asserting standing. In her amended complaint, she alleged:

Ruckle has standing to bring this action because she is the mother of two children who attend schools operated by the ASD. Her oldest child currently rides school buses contracted for by the ASD, the younger child will do so next year. She has suffered injury to cognizable interests by the acts and omissions of the ASD and Department as alleged herein, including, but not limited to, the facts that the ASD awarded the school bus contract to a proposer which failed to comply with the requirements of RFP2000-605 Request for Pupil Transportation Proposals, especially those relating to safety, and because that award was not in the best interests of the user population.

The superior court did not explain why it denied Ruckle leave to amend her complaint. Ruckle argues that this denial without explanation constitutes an abuse of discretion. Absent a determination that amendment would be futile, Ruckle maintains, the superi- or court should have granted her the leave it assumed she had requested.

We have long held that leave to amend a pleading should be freely given and that, absent a showing that the amendment would have resulted in injustice, a trial court will be found to have abused its discretion in denying a motion to amend. In Betz v. Chena Hot Springs Group, we endorsed the reasons set forth by the United States Supreme Court in Foman v. Davis for denying the amendment of a complaint. Specifically, the Foman Court instructed that:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”

ASD focuses its argument on the alleged futility of amendment, maintaining that Ruckle should not be permitted to amend her complaint because her allegations of interest-injury standing are too generalized to survive a motion to dismiss. In response, Ruckle maintains that she has set forth sufficient facts to survive a motion to dismiss. As Ruckle explains:

Ruckle’s cognizable interest is that of assuring the safety of her children as they ride transportation provided by the ASD to and from school each day. The injury she suffered was the reasonable apprehension that her daughter was being placed at risk because the ASD awarded the school bus contract to a proposer, First Student, which failed to comply with numerous requirements of the RFP, most particularly those relating to safety. The fact that her daughter was subsequently involved in two separate school bus accidents, sustaining injuries in the second, only reinforced the reasonableness of Ruckle’s apprehensions. The relief Ruckle sought, a declaration voiding the contract awarded by the ASD to First Student, would fully remediate the injury she suffered by eliminating the risk that her children will continue to be transported to and from school by a contractor which failed to meet the minimum safety and other operator requirements set forth in the RFP.

(Emphasis in original, footnote and citations omitted.)

Our jurisprudence has recognized interest-injury standing in a variety of contexts. In Moore v. State, we set out our expansive interpretation of standing:

Whether a party has standing to obtain judicial resolution of a controversy depends on whether the party has a sufficient personal stake in the outcome of the controversy. In our recent decision of Wagstaff v. Superior Court, Family Division, 535 P.2d 1220, 1225 (Alaska 1975), we described this requirement in terms of “injury-in-faet,” and explained that its purpose is to assure the adversity which is fundamental to judicial proceedings[]

At issue in Moore was whether a group of commercial fisherman and the owner of a lodge could bring a challenge against the State of Alaska and the lessees of tracts in or near Kachemak Bay regarding the legality of the sale of certain offshore oil and gas leases in the bay. While defendants maintained that the plaintiffs’ interest in the transaction in question was merely incidental or indirect, the plaintiffs argued that they would be adversely affected by oil exploration in the bay. Agreeing with the plaintiffs, we determined that, because the plaintiffs’ livelihoods depended on the biological productivity of the bay, they did in fact have a sufficient interest in the sale of the leases to establish standing.

In Johns v. Commercial Fisheries Entry Commission, we considered whether a group of fisherman who made their living seining for bait and roe herring in Southeast Alaska could challenge a regulation limiting the maximum number of limited entry permits the Commercial Fisheries Entry Commission (CFEC) would issue. The CFEC claimed that the plaintiffs had not established standing to bring such a challenge since they could not point to any actual or inevitable injury suffered as a result of the maximum number regulation. Because the question whether each plaintiff would receive a permit was unresolved, and each plaintiff retained an interim use permit at the time the suit was filed, the CFEC argued that the plaintiffs might never suffer any injury because of the regulation. Plaintiffs countered that the threatened loss of their right to enter the fishery constituted a sufficient injury to justify standing. Explaining that “[a] party need not wait for anticipated harm to materialize before bringing an action to protect his rights,” we endorsed the finding of standing based on anticipated future harm. To instead adopt a rule of inevitability, as urged by the CFEC,

would establish an unwarranted distinction between possible and certain harm for purposes of determining standing; such a rule would deny standing to parties who could demonstrate at the filing only the possibility of harm. That approach is not consonant with the thrust of Alaska law. We think it bad law and bad policy to approve a rule which shuts the courthouse doors until, in certain situations, it may be too late to obtain meaningful judicial relief[]

We echoed these sentiments in Trustees for Alaska v. State, in which we observed that the adverse interest required to establish interest-injury standing

may be economic, or it may be intangible, such as an aesthetic or environmental interest. The degree of injury to the interest need not be great; “ ‘[t]he basic idea ... is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.’ ”[]

Based on the expansive definition of adversity set out in earlier cases, we agree with Ruckle that amendment of her complaint in this case would not be futile. Ruck-le alleged that she has two children who are or will be attending Anchorage schools and riding the buses of the transportation provider selected by ASD. Ruckle therefore has an interest in who that provider is. She also alleged that the selected school transportation provider, First Student, failed to provide an outline of its accident prevention program, as required by the RFP. While Ruckle may never suffer injury as the result of ASD’s selection, the possibility that she might, in the form of harm to her children, and the possibility that ASD’s selection process may have eliminated a “safer” transportation option, are of interest to Ruckle. Because her allegations do not on their face appear futile, we believe the superior court abused its discretion in denying Ruckle leave to aménd her complaint. We therefore reverse the court’s decision and remand for Ruckle’s amended complaint to be reinstated.

D. Remaining Issues

Ruckle also maintains that the superior court erred in dismissing her complaint with prejudice, since a dismissal for lack of subject matter jurisdiction is not a dismissal on the merits and therefore does not act as a bar to a subsequent action on the same issue. Because we remand for the court to grant Ruckle leave to file an amended complaint, we find it unnecessary to resolve this question.

Finally, in response to concerns raised by ASD and the state during the course of this case, we note that the superior court may consider other means of approaching this litigation. For example, the court might choose to authorize discovery on ASD’s “stalking horse” theory, consolidate Ruckle’s claims with the Laidlaw litigation, or stay the present case until Laidlaw’s claims have been resolved. We recognize that such decisions lie within the discretion of the superior court and, therefore, express no opinion as to which alternative approach the court ought to follow, if any.

Y. CONCLUSION

Because we agree that a more appropriate plaintiff has already challenged ASD’s actions, we AFFIRM the decision of the superior court to dismiss Ruckle’s complaint against ASD inasmuch as it was based on citizen-taxpayer standing. We AFFIRM the superior court’s determination that Ruckle was not entitled to amend her complaint without leave of the court after the complaint had been dismissed, but we REVERSE the court’s denial of leave to amend a complaint alleging interest-injury standing. We REMAND for further proceedings consistent with this opinion.

FABE, Chief Justice, not participating.

      .Ruckle claims that First Student's bid was missing the following items:
      1. Acknowledgments of Addenda 1-5.
      2. A signed Non-Collusion Affidavit and nondiscrimination statement.
      3. The names and resumes of persons who n would be primarily responsible for managing the pupil transportation services.
      4. Certifications that arrangements had been made for the purchase, lease, or rent of facilities necessary to provide pupil transportation services, that necessary financing was available and that necessary facilities would be available in time to perform the contract.
      5. Samples of the driver route notebook for regular and Special Education routes, the driver and attendant policy manual, and the dispatch procedure manual.
      6. Job descriptions for all positions required under the contract and estimated amounts of time operations personnel would spend on each job function, including any responsibilities not directly related to providing service under the contract.
      7. An outline of the First Student's accident prevention program tailored to driving conditions encountered in Anchorage, Alaska.
      8. The wage and benefit scale to be applied to drivers and attendants.

      . See Laidlaw Transit, Inc. v. Anchorage Sch. Dist., Case No. 3AN-01-04545 CI.

      .4 AAC 27.085 provides the requirements for competitive pupil transportation proposals and, among other things, lists the criteria that must be contained in requests for proposals, the procedures districts shall use in the certification process and selection of a proposer, and the circumstances under which a proposer may move for reconsideration of the board’s determination.

      . Alaska Civil -Rule 12(b)(1) sets out the procedure by which a party may request dismissal for lack of subject matter jurisdiction.

      . Andrews v. Alaska Operating Engineers-Employers Training Trust Fund, 871 P.2d 1142, 1144 (Alaska 1994).

      . Jackson v. Power, 743 P.2d 1376, 1379, n. 5 (Alaska 1987) (citation omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987).

      . DeSalvo v. Bryant, 42 P.3d 525, 527 (Alaska 2002).

      . Id. at 527-28 (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).

      . Under AS 22.10.020(c), superior courts may issue injunctions and "all other writs necessary or proper to the complete exercise of its jurisdiction.” Alaska Statute 22.10.020(g) provides:
      In case of an actual controversy in the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. The declaration has the force and effect of a final judgment or decree and is reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment.

      . Jefferson v. Asplund, 458 P.2d 995, 999 (Alaska 1969).

      . Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096 (Alaska 1988).

      . Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (citation omitted).

      . Id.

      . Id. at 329.

      . Baxley v. State, 958 P.2d 422, 428 (Alaska 1998) (citing Trustees for Alaska v. State, 736 P.2d at 329-30).

      . 753 P.2d 1132 (Alaska 1988).

      . Id. at 1135-36 (quoting Gostovich v. City of West Richland, 75 Wash.2d 583, 452 P.2d 737, 740 (1969)) (alterations in original). See also Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 998 (Alaska 1999).

      . See, e.g., Ewy v. Sturtevant, 962 P.2d 991, 995 (Colo.App.1998) (stating that "[t]he public bidding process, however, is for the protection of the public, not the bidders” and as such "bidders[ ] have no standing to challenge the propriety of an award of a public contract to another bidder”); Black Ash Servs., Inc. v. DuBois Area Sch. Dist., 764 A.2d 672, 674 (Pa.Commw.Ct.2000) (holding that "mere disappointed bidder to a public contract does not have standing to challenge its award” and requiring that "[t]o have standing, the bidder must be an aggrieved taxpayer of the municipality awarding the contract”); On-Point Tech. Sys., Inc. v. Commonwealth, 753 A.2d 911, 914 (Pa.Commw.Ct.2000) (distinguishing between action brought by disappointed bidder against state under Procurement Code and one filed by taxpayer in equity); Sloan v. Sch. Dist., 342 S.C. 515, 537 S.E.2d 299, 303 (App.2000) (stating that "[t]he taxpayers of Greenville County have a direct interest in the proper use and allocation of tax receipts by the District" and therefore may challenge "the District’s failure to abide by the competitive sealed bidding requirements in its procurement code”).

      . See Ewy, 962 P.2d at 995 (noting that Colorado law does not provide bidders, as bidders, with standing to challenge award of public contract to another bidder); Black Ash Servs., Inc., 764 A.2d at 674 (observing that to have standing in Pennsylvania, bidder must be municipal taxpayer).

      . See Lower Kuskokwim Sch. Dist. v. Found. Servs., Inc., 909 P.2d 1383, 1384 (Alaska 1996) (considering challenge by unsuccessful bidder for school transportation contract); King v. Alaska State Hous. Auth., 633 P.2d 256, 263 (Alaska 1981) (holding that government agency enters implied contract with bidder to consider bids honestly and fairly and that bidder may sue to enforce this contract).

      . 4 AAC 27.085(e) outlines the procedures to be used by a school district in certifying bids for competitive pupil transportation proposals as responsive or nonresponsive to the request for proposals. Under subsection (5), "a proposer whose proposal was certified as nonresponsive may petition the board in writing for reconsideration.”

      . 4 AAC 27.085(g) provides;
      Within five working days following the district school board’s offering a contract, a proposer whose proposal was not accepted may petition the board, in writing, for reconsideration of its action. Petitions for reconsideration are limited to the following grounds, which must be specified: (1) fraud or duress by the district school board or a proposer; or (2) error of the district school board in calculating dollar amounts. The aggrieved proposer shall deliver the petition to all other proposers. The district school board shall decide the scope and form the reconsideration will take, except that all responsive proposers must be given the opportunity to be heard on the petition.

      . See also Lower Kuskokwim Sch. Dist., 909 P.2d 1383 (Alaska 1996) (concerning appeal of school board's transportation contract).

      . Civil Rule 15(a) provides in relevant part:
      A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

      . In her opposition to ASD’s motion to dismiss, Ruckle stated in a footnote that, should the court fail to find that she had established citizen-taxpayer standing, she was reserving her right to amend her complaint to allege facts showing the necessary foundation for interest-injury standing. Ruckle again noted her intention to file an amended complaint during the hearing on the motion to dismiss. In the superior court’s order dismissing Ruckle's complaint for lack of subject matter jurisdiction, the court noted that Ruckle had reserved her right to amend her complaint at a later point in time.

      . 194 F.R.D. 223, 229-31 (E.D.Pa.2000).

      . Id. at 229 (citing Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.1984); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1520 (9th Cir.1983)).

      . Id. at 229.

      . Id. at 229-30 (citing Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1131 (10th Cir.1994); Acevedo-Villalobos v. Hernandez, 22 F.3d 384 (1st Cir.1994); Whitaker v. City of Houston, Tex., 963 F.2d 831, 835 (5th Cir.1992); Dorn v. State Bank of Stella, 767 F.2d 442, 443 (8th Cir.1985); Czeremcha v. Int’l Ass’n of Machinists and Aerospace Workers, 724 F.2d 1552, 1556 (11th Cir.1984); Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 448 n. 1 (2d Cir.1978)).

      . Id. at 230-31.

      . Id. at 231 (citing Camp v. Gregory, 67 F.3d 1286, 1289 (7th Cir.1995); Worldwide Church of God, Inc. v. State of Cal., 623 F.2d 613, 616 (9th Cir.1980)).

      . See, e.g., Estate of Thompson v. Mercedes Benz, Inc., 514 P.2d 1269, 1271 (Alaska 1973).

      . Judge Rindner stated in his order that he would proceed as though Ruckle had requested leave to file an amended complaint.

      . Estate of Thompson, 514 P.2d at 1271 (determining that trial court erred in denying leave to amend where there had been no showing of injustice by opposing party).

      . 742 P.2d 1346, 1348 (Alaska 1987).

      . 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

      38. Id. at 182, 83 S.Ct. 227.

      . 553 P.2d 8 (Alaska 1976).

      . Id. at 23 (citation omitted).

      . Id. at 14.

      . Id. at 23-24.

      . Id. at 24-25.

      . 699 P.2d 334 (Alaska 1985).

      . Id. at 335-36.

      . Id. at 336-38.

      . Id. at 337.

      . Id.

      . Id. at 338.

      . Id.

      .736 P.2d 324 (Alaska 1987).

      . Id. at 327 (citations omitted) (alterations in original).

      . This conclusion makes it unnecessary to reach Ruckle’s contention that the superior court erred in dismissing for lack of citizen-taxpayer standing her original claim against the state. The amended complaint alleges interest-injury standing as to both the school district and the state. Because Ruckle’s allegations in the amended complaint are sufficient to demonstrate her standing as to the state, it is unnecessary for us to consider whether the first complaint was sufficient in that regard.


author: MANNHEIMER, Judge.

text:
    William J. JACKSON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8306.
    Court of Appeals of Alaska.
    Feb. 20, 2004.
    Kit Karjala, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    John R. Bandle, Assistant District Attorney, Leonard M. Linton, Jr., District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: MANNHEIMER and STEWART, Judges, and ANDREWS, Senior Superior Court Judge.

       Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

   OPINION

MANNHEIMER, Judge.

In early 2001, William J. Jackson was charged with driving while his license was suspended. At his arraignment, the district court set two future court dates for Jackson: a pre-trial conference scheduled for March 21st, and a trial call scheduled for April 13th. Jackson failed to appear in court on these dates, and he was subsequently charged with two counts of misdemeanor failure to appear.

At his trial, Jackson conceded that he had been notified of the two court dates. However, he asserted that he incorrectly recalled the date of his first court appearance (the pre-trial conference), and then, when he realized that he had missed his pre-trial conference, he did not understand that he was still obliged to appear for the trial call on April 13th. Jackson testified that he assumed that both hearings would be rescheduled, and that someone would notify him of the new dates.

Jackson’s attorney asked the trial judge to instruct the jury that the State was obliged to prove that Jackson’s culpable mental state (his conscious choice not to appear- in court) coexisted simultaneously with his physical acts of failing to appear. That is, the defense attorney wanted the jury instructed that Jackson could not be found guilty unless the State proved that, on the very dates that Jackson was scheduled to appeal- in court (la, March 21 and April 13, 2001), Jackson consciously considered his obligation to appear in court and decided to ignore it.

The trial judge (District Court Judge Natalie K. Finn) refused to give this proposed instruction, and Jackson now argues that this was error. He contends that, in the absence of the requested instruction, the jury may have convicted him based solely on his concession that he had received notice of his two court dates, without finding a “concurrence of ... guilty act and ... guilty mind.”

But even though Judge Finn declined to give Jackson’s proposed instruction, she did not ignore these matters of law when she instructed the jury. Judge Finn informed the jurors that Jackson could be convicted of failure to appear only if he acted “knowingly”, and she gave the jurors the statutory definition of this culpable mental state. Moreover, Judge Finn also instructed the jurors that Jackson could be convicted of failure to appear only if the State proved “a joint operation of [the] act or conduct and [the] culpable mental state”.

Under these instructions, Judge Finn allowed Jackson’s attorney to argue to the jury that Jackson should be acquitted if the jury believed that there was a reasonable possibility that Jackson made an honest mistake about the first court date, and then, having missed that first court date, Jackson did not understand his continuing obligation to appear for the second date. Nevertheless, Jackson asserts that the jury instructions— and thus the jury’s verdicts — were flawed.

Jackson’s appeal presents the question of what, precisely, is meant by the “joint operation” of conduct and culpable mental state when a defendant is charged with failure to appear. As explained above, Jackson contends that the State was obliged to prove that Jackson made two conscious decisions not to appear in court, and that these conscious decisions occurred on the very days of his two scheduled court appearances (March 21 and April 13, 2001). But this is not the law.

The “joint operation” requirement— the requisite concurrence of the defendant’s culpable mental state with the defendant’s act or omission — is satisfied if the defendant’s culpable mental state actuates the prohibited conduct, even though there may not be strict simultaneity between the two. As explained in Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed.1982), p. 933,

One error to be avoided is the false notion that [the] “concurrence” [of culpable mental state and prohibited conduct] means ... mere coincidence^] [T]he actual requirement is that the two elements of crime must be “brought together” in the sense of a causal relation between the mens rea and the actus reus. Stated in other words, the actus reus must be attributable to the mens rea, and if this relation is clearly shown[,] it is unimportant that the two were not present at the same time, whereas [temporal] coexistence is not sufficient if the causal relationship is lacking.

Thus, Jackson would be guilty of “knowingly” failing to appear if he decided early on that he would not attend his scheduled court appearances, and he then dismissed the matter from his mind. Jackson’s conscious decision not to attend court, combined with his subsequent failure to appear on the two specified days, would constitute a sufficient concurrence of culpable mental state and prohibited act or omission — even if it were true that, on the two scheduled days, Jackson gave no conscious thought to his court appearances.

Jackson’s proposed instruction would have required the jury to find simultaneity of culpable mental state and prohibited conduct when, in fact, this was not required. Accordingly, Judge Finn properly rejected the proposed instruction.

Jackson also argues that the jury may have convicted him based solely on the undisputed evidence that he was informed (at his arraignment) of his two future court dates. But we do not read the jury instructions to allow this.

As explained above, the jury was told that Jackson could not be convicted unless the jurors were convinced beyond a reasonable doubt that Jackson’s conduct (¿a, his failure to appear) was knowing, and they were further told that Jackson could not be convicted unless the jurors found a “joint operation” of culpable mental state and prohibited conduct. Jackson presented the defense that he made an honest mistake as to the date of his first scheduled court appearance and that, after he realized that he had missed this first court appearance, he honestly believed that his second court appearance would be canceled and that he would be notified of new court dates. If the jury had accepted these assertions, they would not have found that Jackson’s non-appearance was “knowing” as defined in the instructions.

Finally, Jackson contends that the prosecutor, in a portion of the State’s summation, invited the jurors to find that Jackson acted “knowingly” based solely on the fact that Jackson was informed of his two court dates. But the prosecutor did not argue that Jackson’s asserted defense of mistake was legally irrelevant so long as the jurors found that Jackson had received advance notice of the two court dates. Rather, the prosecutor argued that the jurors should consider all of the circumstances before deciding whether to credit Jackson’s asserted defense of mistake:

Prosecutor: State of mind. You don’t have to rely on [Jackson’s testimony on this subject]. You’ll receive a jury instruction [on this point]. You know who determines his state of mind? You do. The jury decides [whether] what ... he [was] saying [is] true[.] ...
[Quoting from a jury instruction:] “State of mind may be proved by circumstantial evidence. It rarely can be established by any other means.... [T]here can be no eyewitness to the state of mind with which the acts were done or omitted.” You can’t read minds.... But what a defendant does or fails to do may indicate his state [of] mind or lack thereof. So you get to look and weigh ... his actions.
[Again quoting from a jury instruction:] “In determining issues of state of mind, the jury is entitled to consider any statements made, acts done, or omitted by the accused, and all facts and circumstances in evidence which may aid determination of the defendant’s state of mind” — you get to determine that. Was he telling the truth, or are his excuses reasonable? Did he know? You get to decide that, okay?

We have considered and rejected all of Jackson’s claims of error. Accordingly, the judgement of the district court is AFFIRMED.

COATS, Chief Judge, not participating.

      . AS 12.30.060.

      .Jackson's proposed instruction read:
      I have instructed you that the required [culpable] mental state in this case is "knowingly.” I have also instructed you that the State must prove that the alleged crimes occurred on or about March 21, 2001, and April 13, 2001. Therefore, the State must prove to you beyond a reasonable doubt that not only did Mr. Jackson fail to appear for required court hearings on or about March 21, 2001 and April 13, 2001, but that he knew[,] on or about those dates of March 21, 2001 and April 13, 2001, that he was failing to appear.... In other words, the required [culpable] mental [state] and the alleged conduct must occur simultaneously.

      . AS 11.81.900(a)(2).

      . See Wayne R. LaFave, Substantive Criminal Law (2nd ed.2003), § 6.3(a), Vol. 1, p. 451.