McEwen v. Nebraska State College Sys.

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www.nebraska.gov/apps-courts-epub/
12/17/2019 09:06 AM CST
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
Dr. Robert McEwen, appellant, v. Nebraska
State College System, appellee.
___ N.W.2d ___
Filed December 17, 2019. No. A-17-638.
1. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
2. Contracts. The interpretation of a contract and whether the contract is
ambiguous are questions of law.
3. ____. In interpreting a contract, a court must first determine, as a matter
of law, whether the contract is ambiguous.
4. Contracts: Words and Phrases. A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of, at least two
reasonable but conflicting interpretations or meanings.
5. 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.
6. ____. The fact that the parties have suggested opposing meanings of a
disputed instrument does not necessarily compel the conclusion that the
instrument is ambiguous.
7. ____. A contract must receive a reasonable construction, and a court
must construe it as a whole and, if possible, give effect to every part of
the contract.
8. ____. Whatever the construction of a particular clause of a contract,
standing alone, may be, it must be read in connection with other
clauses.
9. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Dawes County: Derek C.
Weimer, Judge. Affirmed.
- 897 -
Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons
Olsen Law Firm, P.C., for appellant.
George E. Martin III and Leigh Campbell Joyce, of Baird
Holm, L.L.P., for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Riedmann, Judge.
INTRODUCTION
Dr. Robert McEwen appeals the decision of the district
court for Dawes County which overruled his petition in error
challenging the termination of his employment. On appeal,
he alleges that the court’s decision was erroneous because
the Nebraska State College System (NSCS) failed to comply
with a contractually required provision prior to terminating his
employment. Finding no merit to this argument, we affirm.
BACKGROUND
McEwen was a tenured professor at Chadron State College
(CSC). He and NSCS were members of the State College
Education Association, which was a party to a collective
bargaining agreement (the CBA) effective from July 1, 2015,
through June 30, 2017. Under the CBA, faculty members,
tenured and nontenured, may be dismissed for just cause.
Section 17.3 of the CBA provided, “Prior to giving a fac-
ulty member notice of a recommendation for dismissal, the
Dean shall meet privately and discuss the recommendation
with the faculty member. The matter may be reconciled by
mutual consent.”
In the fall of 2015, one of McEwen’s students filed a for-
mal complaint against McEwen with CSC’s administration
alleging discrimination. The associate vice president of human
resources at CSC, Anne DeMersseman, began an investiga-
tion into the complaint. In October, Dr. Charles Snare, the
vice president for academic affairs at CSC, and Dr. James
Margetts, a dean at CSC who oversaw McEwen, authored a
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
letter to McEwen outlining the concerns raised in the com-
plaint and subsequent investigation. A meeting concerning
the complaint was held on October 30, and McEwen, Snare,
Margetts, and DeMersseman attended, as well as an auditor
for McEwen due to his hearing difficulties. Snare, Margetts,
and DeMersseman discussed the matter after the meeting and
decided to recommend dismissal of McEwen.
A second meeting was held on November 10, 2015.
McEwen, Snare, and Margetts attended the meeting, which
was held in Margetts’ office. Margetts requested Snare’s pres-
ence as a witness, but Snare did not speak at all during the
meeting. Margetts informed McEwen that he was recommend-
ing McEwen’s dismissal and offered him the opportunity to
resign rather than be subject to dismissal. Upon the advice of
his union representative, McEwen declined to comment, and at
the end of the meeting, which lasted approximately 5 minutes,
Margetts provided McEwen a copy of the letter recommending
his dismissal.
Subsequently, the president of CSC sent written notice of the
recommendation to McEwen. Pursuant to procedure set forth
by the CBA, McEwen requested a hearing before an advisory
committee. Prior to the hearing, McEwen filed a motion for
reinstatement and dismissal of recommendation of dismissal.
The motion alleged, in part, that CSC had not complied with
the requirements of section 17.3 of the CBA. The advisory
committee denied the motion. The audio-recorded hearing took
place in February 2016; evidence was presented, witnesses
testified, and the recording was transcribed. At the conclusion
of the hearing, McEwen renewed his motion. The motion was
again denied. The advisory committee unanimously found that
just cause for McEwen’s dismissal existed and recommended
the termination of his employment.
The president of CSC sent to McEwen a written let-
ter dated March 16, 2016, in which he affirmed the find-
ings and recommendations of the advisory committee and
discharged McEwen’s employment. McEwen then made a
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
written request to NSCS’ chancellor requesting a hearing
before NSCS’ board of trustees. In a response letter, the chan-
cellor denied McEwen’s request for a hearing, thereby final-
izing the discharge.
On May 17, 2016, McEwen filed a petition in error in the
district court. He alleged that he had been wrongfully termi-
nated from his position as a tenured professor at CSC. As rel-
evant to this appeal, he asserted that NSCS failed to follow the
procedure set forth in section 17.3 of the CBA. Specifically,
he claimed that section 17.3 mandated a “private” meeting
between McEwen and Margetts and that because Snare was
also present at the November 10, 2015, meeting, it did not sat-
isfy section 17.3’s requirements.
The district court disagreed, finding that the November 10,
2015, meeting satisfied the requirements of section 17.3. The
court found that the term “private” required some restriction
to participation in and observance of the occurrence, and it
found that that standard was satisfied when the November
10 meeting took place in a private office, behind “‘closed
doors,’” and with no verbatim record kept. The court errone-
ously found that an auditor for McEwen was present at the
meeting in addition to McEwen, Snare, and Margetts, but
noted that neither the auditor nor Snare actively participated
in the meeting. The court therefore overruled McEwen’s peti-
tion in error.
McEwen filed a motion for new trial or, in the alterna-
tive, an order to vacate the judgment. In its order denying the
motion, the district court recognized that it had made a factual
error in its prior order in that an auditor was not present at the
November 10, 2015, meeting. However, the court concluded
that this factual error did not mandate a vacation of its previ-
ous order; thus, it denied McEwen’s motion to vacate. The
motion for new trial was also denied.
McEwen then filed a notice of appeal. This court summar-
ily dismissed the appeal for lack of jurisdiction, finding that
McEwen’s motion for new trial did not toll the time to file
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
a notice of appeal and that McEwen’s notice of appeal was
not timely filed. On petition for further review, the Nebraska
Supreme Court, overruling prior precedent, determined that
Neb. Rev. Stat. § 25-1329 (Reissue 2016) applies to a judg-
ment of a district court acting as an intermediate appellate
court. See McEwen v. Nebraska State College Sys., 303 Neb.
552, 931 N.W.2d 120 (2019). Consequently, it concluded that
McEwen’s alternative motion to vacate qualified as a motion to
alter or amend a judgment; therefore, his notice of appeal was
timely. Id. Accordingly, the Supreme Court reversed the sum-
mary dismissal of the appeal and remanded the cause to this
court for further proceedings. Id. We now proceed to address
the merits of the appeal.
ASSIGNMENT OF ERROR
McEwen assigns, consolidated and restated, that the district
court erred in overruling his petition in error because NSCS
failed to meet the requirements of section 17.3 of the CBA.
STANDARD OF REVIEW
[1,2] We independently review questions of law decided by
a lower court. Timberlake v. Douglas County, 291 Neb. 387,
865 N.W.2d 788 (2015). The interpretation of a contract and
whether the contract is ambiguous are questions of law. Id.
ANALYSIS
McEwen alleges that NSCS failed to follow section 17.3 of
the CBA, which requires that the Dean “meet privately” with
him to discuss the recommendation for dismissal. McEwen
argues that the term “privately” mandates a “one-on-one”
meeting between him and Margetts and that he never received
his private meeting prior to his dismissal, because Snare was
present at the November 10, 2015, meeting. See brief for
appellant at 22. NSCS claims that McEwen’s definition of the
term “privately” is too narrow and that rather than limiting
the number of attendants at the meeting, the term requires a
“‘non-public’” or “‘off-the-record’” meeting. See brief for
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
appellee at 13. Thus, the issue before us is the meaning of the
term “privately” as used in section 17.3.
[3-6] In interpreting a contract, a court must first determine,
as a matter of law, whether the contract is ambiguous. Gibbons
Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015).
A contract is ambiguous when a word, phrase, or provision
in the contract has, or is susceptible of, at least two reason-
able but conflicting interpretations or meanings. Id. 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. Id. The fact that the parties have suggested
opposing meanings of a disputed instrument does not neces-
sarily compel the conclusion that the instrument is ambig­
uous. Id.
Although the parties have suggested conflicting interpreta-
tions in the present case, neither party suggests that the con-
tract is ambiguous, and we find that it is not. As such, we give
the term “privately” its plain and ordinary meaning.
The Supreme Court has often turned to dictionaries to
ascertain a word’s plain and ordinary meaning. See State v.
Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016). See, also, Stick
v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015);
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb.
779, 844 N.W.2d 755 (2014); Mathews v. Mathews, 267 Neb.
604, 676 N.W.2d 42 (2004); Payless Bldg. Ctr. v. Wilmoth, 254
Neb. 998, 581 N.W.2d 420 (1998). The American Heritage
Dictionary of the English Language 1396 (4th ed. 2000)
defines “private” as “[s]ecluded from the sight, presence, or
intrusion of others”; “[n]ot available for public use, control,
or participation”; “[n]ot for public knowledge or disclosure;
secret”; and “[n]ot appropriate for use or display in public;
intimate.” Similarly, Black’s Law Dictionary 1448 (11th ed.
2019) defines “private” as “[o]f, relating to, or involving an
individual, as opposed to the public or the government” and
“[c]onfidential; secret.”
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
When considering these definitions, we conclude that the
term “privately” as used in section 17.3 is defined more
broadly as NSCS suggests. Rather than allowing only two par-
ticipants, the term means that the meeting is not public. This
interpretation of the term is supported when considering the
remainder of the CBA.
[7,8] A contract must receive a reasonable construction, and
a court must construe it as a whole and, if possible, give effect
to every part of the contract. Labenz v. Labenz, 291 Neb. 455,
866 N.W.2d 88 (2015). Whatever the construction of a particu-
lar clause of a contract, standing alone, may be, it must be read
in connection with other clauses. Id.
When reading section 17.3 with the sections that follow, we
understand that by requiring the dean to meet “privately” with
the faculty member, it allows the attendants of the meeting to
discuss a personnel matter in confidence and attempt an ami-
cable resolution. If they are unable to resolve the matter, the
faculty member is given written notice of the recommendation
for dismissal. According to the CBA, the faculty member may
then request a hearing before an advisory committee, where
evidence is presented and witnesses testify, and the hearing
may be transcribed by a court reporter upon request by any
party. Thus, when considering additional sections of the CBA,
rather than requiring a one-on-one meeting between the dean
and the faculty member, we interpret the private nature of the
section 17.3 meeting to stand in contrast to the more public
nature of the hearing before the advisory committee, giving the
faculty member the chance to resolve the matter behind closed
doors first before it is addressed to a committee and in front
of witnesses.
When considering this definition, we conclude that the
November 10, 2015, meeting satisfied the requirements of
section 17.3. The meeting was held in Margetts’ office, and
there was no verbatim record kept of the meeting. Snare
attended as a witness but did not say anything during the meet-
ing. Margetts informed McEwen that he was recommending
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
McEWEN v. NEBRASKA STATE COLLEGE SYS.
Cite as 27 Neb. Ct. App. 896
dismissal and offered him the opportunity to resign rather than
be subject to dismissal. Upon the advice of his union repre-
sentative, McEwen declined to comment. The meeting lasted
approximately 5 minutes, and at the conclusion, Margetts gave
McEwen a copy of the letter recommending his dismissal.
Thus, the meeting was held in private and off the record,
and it was attended by just three people, only two of whom
participated. In addition, the meeting allowed McEwen the
opportunity to reconcile the matter by mutual consent should
he have chosen to do so. Accordingly, the district court prop-
erly concluded that NSCS complied with the requirements of
section 17.3, and thus, the court did not err in overruling the
petition in error on that basis.
[9] McEwen raises two additional arguments on appeal. He
first asserts that section 17.3 is a substantive rule, as opposed
to a procedural rule, and argues that because NSCS failed to
follow the requirements of this section, its actions are arbitrary
and capricious and subject to reversal. In addition, and in the
alternative to the preceding argument, he claims that section
17.3 imposed a contractual duty that NSCS was required to
follow before it could exercise termination rights under the
CBA. Both of these arguments, however, are premised on a
finding that a section 17.3 private meeting was never held.
Because we have concluded that McEwen was afforded his
rights under section 17.3, we need not address his additional
arguments. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and contro-
versy before it. Greenwood v. J.J. Hooligan’s, 297 Neb. 435,
899 N.W.2d 905 (2017).
CONCLUSION
We conclude that the requirements of section 17.3 of the
CBA were satisfied in this case and that therefore, the district
court did not err in overruling McEwen’s petition in error. We
therefore affirm.
Affirmed.