Kercher v. Bd. of Regents of the Univ. of Neb.

860 N.W.2d 398

Kyle Kercher, appellee and cross-appellant

v.Board of Regents of the University of Nebraska et al., appellants and cross-appellees.

No. S–14–211.

Supreme Court of Nebraska.

Filed March 20, 2015.

John C. Wiltse, of University of Nebraska, and Terry R. Wittler, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellants.

James C. Zalewski, of DeMars, Gordon, Olson, Zalewski & Wynner, Lincoln, and Maynard H. Weinberg, of Weinberg & Weinberg, P.C., Omaha, for appellee.

Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Summary Judgment.Summary judgment is proper if the pleadings and admissible evidence offered show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error.In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives the party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Judgments: Appeal and Error.The meaning of a contract is a question of law, in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.

4. Attorney Fees: Appeal and Error.An appellate court reviews a court's award of attorney fees under Neb.Rev.Stat. § 48–1231 (Reissue 2010) for abuse of discretion.

5. Employment Contracts: Breach of Contract: Proof.In an action for breach of an employment contract, the burden of proving the existence of a contract and all the facts essential to the cause of action is upon the person who asserts the contract.

6. Contracts.When the terms of a contract are clear, a court may not resort to rules of construction, and the terms are to be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them.

7. Contracts.A contract must receive a reasonable construction and must be construed as a whole, and if possible, effect must be given to every part of the contract.

8. Judges: Words and Phrases.A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

9. Attorney Fees.To determine proper and reasonable attorney fees, a court must consider several factors: the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services.

McCormack, J.

NATURE OF CASE

Kyle Kercher filed a complaint alleging that the Board of Regents of the University of Nebraska and the University of Nebraska at Omaha (collectively the University) breached his employment contract when it removed him from his appointed professorship that he alleges was a part of his tenured appointment. The district court granted Kercher's motion for partial summary judgment on the issue of liability, and damages were stipulated by the parties. The University appeals the judgment against it. Kercher cross-appeals the district court's order awarding him attorney fees, because the court awarded only a portion of the fees requested for work done by a second attorney working on Kercher's behalf. We

affirm the judgment and the district court's order awarding Kercher attorney fees.

BACKGROUND

In 2001, a fund was created by Terry Haney for the purpose of providing a stipend for a professorship within the Department of Gerontology (the Department) within the College of Public Affairs and Community Service (CPACS) at the University of Nebraska at Omaha. The professorship was designated as the “Terry Haney Chair of Gerontology.” The fund agreement between Haney and the University of Nebraska Foundation (the Foundation) required that the individual selected for the appointment meet certain requirements, including possessing the “[a]bility and proven experience to conduct community outreach to include speeches, seminars, conferences and other training activities in order to advance knowledge pertinent to Gerontology.” The fund agreement also states that the appointment lasts for 5 years, at which point the recipient is eligible for renewal for another 5–year period.

In 2005, Kercher applied for a faculty position within the Department. The position was titled “Distinguished Professor of Gerontology.” The job posting stated that the “position involves teaching and research, especially the mentoring of graduate students.” On July 15, 2005, B.J. Reed, the dean of CPACS, sent Kercher a letter which offered him an appointment at the University beginning August 15, 2005. The “Type” of appointment was described as “Continuous (tenured).” The “Rank” of the position was “The Terry Haney Distinguished Professor of Gerontology and Graduate Faculty.” The offer provided that the salary was “$100,000 AY ($76,000 base plus $24,000 endowment from the ... Foundation) paid in twelve equal monthly installments (September 2005 to August 2006).” The offer incorporated an attached statement from James Thorson, the chair of the Department at that time, which “outlines [Kercher's] initial assignment.”

The attached statement from Thorson made no reference to the terms of the fund agreement, nor did it make any specific reference to community outreach duties as a part of his appointment. The attached statement to the offer stated that Kercher's duties

would also include “Committee and/or other assignments as requested by the chair of the Department of Gerontology and/or the dean.” The offer also incorporated the University's bylaws (the Bylaws) into the agreement. The fund agreement itself was not incorporated into the offer. Kercher accepted the offer on July 20, 2005.

Section 4.3(1) of the Bylaws lists the four types of appointments for faculty: (1) special appointment, (2) appointment for a specific term, (3) continuous appointment, and (4) health professions faculty appointment. Section 4.4.1 defines special appointments as any appointment that does not fall under one of the three other categories. Section 4.4.1(9) goes on to provide that “appointments supported by funds over which the University does not have control or which the University cannot reasonably expect to continue indefinitely” can only be filled by special appointment. Additionally, faculty members “may hold a ‘Special Appointment’ coincident with ... a ‘Continuous Appointment,’ and the terms of the Special Appointment may be independent of the terms of the other appointment status as a faculty member.” While the Bylaws state that special appointments are terminable with 90 days' notice, section 4.4.3 provides that a continuous appointment is “terminable only for adequate cause, bona fide discontinuance of a program or department, retirement for age or disability, or extraordinary circumstances because of financial exigencies.”

The Bylaws also provide a clear procedure for the creation of faculty appointments. Section 4.3(a) provides that “[e]very appointment by the University ... shall be in writing and signed by the Board [of Regents] or its authorized agent.” Section 4.3(b) provides that “every faculty member appointed to a position ... shall, when initially appointed, be given a written statement specifically stating and apportioning the faculty member's initial teaching, extension, service, research, and administrative responsibilities.”

In 2006, Haney met with Kercher, Thorson, and another faculty member. Haney informed Kercher of the criteria for the fund agreement and indicated that Kercher should engage in more community outreach. Kercher testified at deposition

that he did not believe Haney's request to be a contractual duty and considered the meeting to be “ceremonial.” Kercher stated that he did not feel like he needed to meet Haney's expectations.

Throughout the rest of Kercher's initial 5–year term, Haney expressed concern to the new head of the Department, Julie Masters, and to Reed, the dean of CPACS, that Kercher was not fulfilling the community outreach requirements of the fund. On May 15, 2010, Haney sent the general counsel of the Foundation a letter indicating that “[p]er the recommendation of the college,” Kercher's appointment should be extended for another year. Haney instructed that Kercher would be eligible for an additional 5–year extension if “Kercher meets the requirements of the outlined fund agreement.”

On June 4, 2010, Reed sent an e-mail to Kercher informing him that the chair appointment was for 5 years and renewable “subject to the conditions of the fund agreement.” This appears to be the first time Kercher was informed by someone employed by the University that the professorship was renewable and not permanent.

Shortly after that e-mail, Masters met with Kercher and provided him with a copy of the fund agreement, which outlined the criteria for the professorship. This was the first time that Kercher had been presented with a copy of the fund agreement. Masters also provided Kercher with a copy of the May 15, 2010, letter Haney had sent to the Foundation.

On July 28, 2010, which marked the end of the initial 5–year appointment, a senior vice chancellor at the University of Nebraska at Omaha informed Kercher that his appointment would be extended for another year “and may be extended for an additional period based on a review of your performance during this period.”

On June 6, 2011, Masters sent Kercher an e-mail indicating that “Haney continues to express concern that the expectations of the fund, specifically community outreach, is [sic] not being met.” Masters requested that...