860 N.W.2d 398
Neb.2015Background
- In 2005 Kercher accepted a University of Nebraska at Omaha offer for a tenured ("Continuous") faculty appointment titled the Terry Haney Distinguished Professor of Gerontology with $100,000 AY salary ($76,000 base + $24,000 endowment stipend).
- The written offer incorporated a department assignment statement and the University Bylaws but did not incorporate the Haney fund agreement or expressly describe any "Special Appointment" terms or outreach duties tied to the $24,000 stipend.
- The Haney fund agreement (created in 2001) required community outreach and specified 5-year terms renewable for another 5 years; Kercher first saw the fund agreement in 2010 and was later informed his chair appointment was renewable, not permanent.
- The University reduced or stopped paying the $24,000 stipend after reviews; Kercher sued for breach of contract. The district court granted Kercher partial summary judgment on liability; damages were stipulated.
- The district court awarded attorney fees to Kercher primarily based on lead counsel Zalewski’s billing and a limited award for earlier work by Weinberg; the University appealed and Kercher cross-appealed the fee allocation.
- The Nebraska Supreme Court affirmed the partial summary judgment, upheld the fee award (finding no abuse of discretion), and awarded additional appellate attorney fees under Neb. Rev. Stat. § 48-1231(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $24,000 endowed stipend constituted a Special Appointment (terminable on 90 days’ notice) or part of the Continuous (tenured) appointment | Kercher: Offer and Bylaws as presented created a continuous appointment for the full $100,000; no written special-appointment terms or duties were disclosed at hire | University: The stipend was paid from an external endowment, and Bylaws require such funded roles be Special Appointments subject to renewal | Held for Kercher: The written offer and incorporated Bylaws did not create or disclose a special appointment; University failed to satisfy written-notice and duties requirements for a special appointment |
| Whether any oral or later disclosures converted the appointment into a Special Appointment | Kercher: No material oral terms were communicated before acceptance; later disclosures (2010) cannot alter the original written appointment | University: Subsequent communications and the fund agreement’s requirements show the stipend was conditional and renewable | Held for Kercher: Lack of pre-acceptance written statement of duties and no evidence of communicated special-appointment terms defeat University’s claim |
| Whether the district court abused discretion in awarding reduced fees to Weinberg | Kercher: Weinberg did substantive early work and should be fully compensated at his customary rate | University: Weinberg’s contribution was minimal after lead counsel took over; limited award appropriate | Held for University on appeal: Trial court did not abuse discretion; limited evidence of Weinberg’s contribution justified reduced award |
| Whether appellate attorney fees should be awarded under § 48-1231(1) | Kercher: Prevailing on appeal entitles him to statutory appellate fees (minimum 25% of unpaid wages) | University: (not argued successfully) | Held for Kercher: Appellate court must award at least 25% of unpaid wages; $7,938 assessed against University; remanded for allocation between attorneys |
Key Cases Cited
- Roos v. KFS BD, Inc., 280 Neb. 930 (standard for reviewing summary judgment)
- Green v. Box Butte General Hosp., 284 Neb. 243 (contract interpretation principles)
- Braunger Foods v. Sears, 286 Neb. 29 (contract meaning and appellate review)
- Fisher v. PayFlex Systems USA, 285 Neb. 808 (attorney-fee review standards)
- Coffey v. Planet Group, 287 Neb. 834 (contract construction; give effect to all parts of contract)