BAUER V. COLLEGE OF SANTA FE, 2003-NMCA-121,
134 N.M. 439, 78 P.3d 76
SCOTT BAUER and GREGORY SCHNEIDER,
Plaintiffs-Appellants,
v.
THE COLLEGE OF SANTA FE, DR. LINDA HANSON, Individually
and as PRESIDENT OF THE COLLEGE OF SANTA FE; STEVEN MILLER, Individually and as
an employee of THE COLLEGE OF SANTA FE; DAVID DUNN, Individually and as an
employee of THE COLLEGE OF SANTA FE; and JOHN WECKESSER, Individually and as an
employee of THE COLLEGE OF SANTA FE, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
2003-NMCA-121, 134 N.M. 439, 78 P.3d 78
APPEAL FROM THE DISTRICT COURT OF
SANTA FE COUNTY, James A. Hall, District Judge.
Certiorari Denied, No. 28,276,
2003-NMCERT-001, October 3, 2003. Released for Publication October 21, 2003.
Michael D. Armstrong, Albuquerque, NM,
for Appellants.
Walter J. Melendres, Tonia Ouellette
Klausner, Montgomery & Andrews, PA, Santa Fe, NM, for Appellees.
MICHAEL VIGIL, Judge. WE CONCUR: IRA
ROBINSON, Judge, RODERICK T. KENNEDY, Judge.
{1} Two probationary,
non-tenured professors at the College of Santa Fe (CSF) sued CSF, its
president, and three professors, contesting non-renewal of their employment for
the 2001-2002 academic year. The district court granted Defendants summary
judgment on Plaintiffs' claims of breach of contract and civil conspiracy. We
affirm the district court.
{2} Summary judgment is
proper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
Self v. United Parcel Serv., Inc.,
1998-NMSC-046, ¶ 6,
126 N.M. 396,
970 P.2d 582. "On review, we examine the
whole record for any evidence that places a genuine issue of material fact in
dispute."
Treloar v. County of Chaves,
2001-NMCA-074, ¶ 11,
130
N.M. 794,
32 P.3d 803 (internal quotation marks and citations omitted).
"[W]e view the facts in a light most favorable to the party opposing
[summary judgment] and draw all inferences in support of a trial on the
merits."
Id. Undisputed facts and the meaning of an unambiguous
contract are reviewed de novo as questions of law.
Id.;
Creson v.
Amoco Prod. Co.,
2000-NMCA-081, ¶ 10,
129 N.M. 529,
10 P.3d 853.
{3} Plaintiffs Scott Bauer
(Bauer) and Gregory Schneider (Schneider) were hired by CSF for the 1999-2000
and 2000-2001 academic years as assistant professors in the Contemporary Music
Program. The contracts commenced in August and continued through the following
May each academic year. When Schneider signed his second contract, his first
year of employment at CSF was counted towards tenure. Bauer was given two years
of credit towards tenure based upon teaching experience prior to commencing at
CSF and his first year of employment at CSF.
{4} Defendant Linda Hanson
(Hanson) became president of CSF in July 2000. As the chief administrator and
executive officer, she is responsible for managing CSF and all its departments.
In this capacity, she prepares and administers the annual budget of CSF,
subject to approval by the Board of Trustees (the Board). She is also
responsible for appointing and promoting the faculty members.
{5} In September 2000, Hanson
submitted her first budget to the Board for the 2000-2001 academic year. The
Board approved a budget that included a $2.2 million operating deficit. The
deficit was paid from a discretionary quasi-endowment fund of CSF. Hanson
immediately started working on the 2001-2002 budget, seeking to alleviate the
budget problems by raising revenues and reducing expenditures. As part of the
process, Hanson resolved to eliminate four faculty positions. Two were eliminated
by attrition. Hanson then looked at the Contemporary Music Program which had
the highest total cost per major and the fewest full time students. The program
also had two non-tenured faculty members: the Plaintiffs. Hanson notified
Plaintiffs on December 12, 2000, that their appointments for the 2001-2002
academic year would not be renewed.
III. BREACH OF CONTRACT CLAIMS
A. Right To Reappointment
{6} The parties agree that
the employment relationship between them was governed by the signed contracts and
the Faculty Handbook of CSF (the Handbook). They also agree that the applicable
provisions of the Handbook are unambiguous. We therefore review these
provisions de novo.
Treloar,
2001-NMCA-074, ¶ 11;
Creson,
2000-NMCA-081, ¶ 10.
{7} The "appointment to
the faculty" provisions of the Handbook specify only two types of full-
time appointments to the rank of instructor or higher: a "Probationary
appointment" and "Appointments with continuous tenure."
Plaintiffs received a probationary appointment since they were not tenured. The
"Criteria for Appointment" section of the Handbook states,
"[f]aculty members will be appointed or reappointed subject to their
professional qualifications, as evidenced either by prior accomplishments at
other institutions or by demonstrated performance at the College." The
standard employment contract for all faculty member appointments is for the
academic year, a period of nine months "whether initial or renewed."
A "non-reappointment" occurs under the Handbook when there is
"[a]ction taken by the Administration not to renew the standard contract
of a probationary faculty member after the expiration of his/her existing
contract."
{8}
Bauer and Schneider argue that the "Criteria for Appointment"
provisions of the Handbook quoted above
required CSF to reappoint them
because they possessed adequate "professional qualifications." We
reject this contention as contrary to the unambiguous language of the Handbook
and contrary to common sense.
{9}
We agree with CSF that the "criteria for appointment" provision
merely sets forth general criteria for appointment or reappointment which must
be met. If a probationary faculty member does not possess the requisite
professional qualifications, he or she is not entitled to be appointed or reappointed.
However, this provision of the Handbook does not set any limitations on
"non- reappointment."
{10}
Bauer and Schneider had contracts of a specific duration. Their contracts
stated they commenced employment in August 2000 and the employment terminated
in May 2001. Hanson simply exercised a right of "non-reappointment"
as described in the Handbook when she gave Bauer and Schneider notice on
December 12, 2000, that their appointments would not be renewed. The contracts
and Handbook together describe only an academic year employment relationship.
CSF did not breach the employment contracts with Bauer and Schneider, it simply
refused to renew their employment arrangement.
Graff v. Glennen,
106
N.M. 668, 668,
748 P.2d 511, 511 (1988) (stating contracts described
year-by-year employment relationship that did not entitle plaintiff to
employment beyond dates stipulated in the contracts);
Hill v. Talladega
Coll., 502 So. 2d 735, 738 (Ala. 1987) (stating term contract by definition
lapses at completion of time for performance, and teacher under such a contract
has no entitlement to continued employment beyond contract's stated term).
{11}
The Handbook clearly states that CSF can terminate a tenured professor or a
probationary appointee before the end of the appointment because of financial
exigency. Furthermore, CSF can even deny tenure for budgetary reasons. However,
under the argument advanced by Bauer and Schneider, CSF may not decline to
renew a probationary appointment for budgetary reasons. According to them, CSF
simply cannot decide not to reappoint a probationary employee if he has
"professional qualifications." This is an unreasonable interpretation
which we decline to adopt.
See State ex rel. Udall v. Colonial Penn
Ins. Co.,
112 N.M. 123, 130,
812 P.2d 777, 784 (1991) (stating
interpretation of unambiguous contract must be reasonable).
{12}
The Handbook does not restrict CSF's authority to refuse to reappoint a
probationary, non- tenured professor. Accordingly, summary judgment was
properly granted in favor of the Defendants.
See DeSimone v. Siena
Coll., 663 N.Y.S.2d 701, 702 (App. Div. 1997) (holding that to extent
faculty handbook was incorporated into employment contract, nothing contained
therein, or in contract, mandated renewal or substantively limited college's
discretion in deciding whether to renew probationary contract);
Taggart v.
Drake Univ., 549 N.W.2d 796, 798 (Iowa 1996) (noting that universities
possess nearly unfettered discretion when deciding to reappoint an untenured
professor for another year of service).
{13}
To the extent Bauer and Schneider rely on a different interpretation put
forward by the Faculty Handbook Committee and Faculty Grievance Committee, that
reliance is misplaced. The Faculty Handbook Committee's interpretation, issued
two months after Bauer and Schneider were notified of their
"non-reappointment," has no bearing on their rights at the time they
received the notice. The Handbook specifically states that when an
interpretation by the Faculty Handbook Committee is given, it is binding only
"until such time as the Board of Trustees either adopts the interpretation
as final, or proposes its own interpretation for consideration and adoption
according to the established procedures for changing the Handbook." It is
also undisputed that the Board rejected the interpretation given by the Faculty
Handbook Committee. Similarly, the only power given to the Grievance Committee
was to "request reconsideration by the President." Reconsideration
was requested and denied.
B. Claim of Untimely
Notice
{14}
Bauer makes one additional argument: that notice of
"non-reappointment" was not timely given in accordance with the
Handbook. In doing so, he attempts to equate "years of service" at
CSF with "years credited toward tenure." Again, we review the
unambiguous contractual provision de novo as a question of law.
Creson,
2000-NMCA-081, ¶ 10. In pertinent part, the Handbook provides that notice of
reappointment must be given in writing:
b. Not
later than December 15th of the second academic year of service, if the
appointment expires at the end of that academic year.
c. At
least twelve months before the expiration of an appointment after two or more
years of service at The College of Santa Fe.
{15}
Bauer asserts that the twelve-month notice requirement for non-renewal of his
contract was required by Section c of the notice provision, because he had been
credited with two years toward tenure based upon his teaching experience before
he began teaching at CSF. It is undisputed that Bauer did not have "two or
more years of service at The College of Santa Fe," as described in Section
c. Moreover, it is undisputed that when he received the notice of
non-reappointment, Bauer was in his "second academic year of
service," as described in Section b. Notice was given on December 12,
2000, in accordance with Section b. "In the absence of ambiguity, a court
must interpret and enforce the clear language of the contract and cannot make a
new agreement for the parties."
Nearburg v. Yates Petroleum Corp.,
1997-NMCA-069, ¶ 23,
123 N.M. 526,
943 P.2d 560. The Appellant's argument that
CSF breached his employment contract due to untimely notice of
non-reappointment also fails.
{16}
To establish civil conspiracy, a plaintiff must demonstrate the following:
"(1) that a conspiracy between two or more individuals existed; (2) that
specific wrongful acts were carried out by the defendants pursuant to the
conspiracy; and (3) that the plaintiff was damaged as a result of such
acts."
Ettenson v. Burke,
2001-NMCA-003, ¶ 12,
130 N.M. 67,
17 P.3d
440 (internal quotation marks and citation omitted). Where defendants have
committed no independent unlawful act, a conspiracy claim fails as a matter of
law.
Ettenson teaches, "[a] civil conspiracy must actually involve
an independent, unlawful act that causes harm -- something that would give rise
to a civil action on its own," and that "[w]ithout an actionable civil
case against one of the conspirators . . . an agreement, no matter how
conspiratorial in nature, is not a separate, actionable offense."
Id.
¶ 12. Plaintiffs contend that Hanson and two professors conspired to breach
their contracts. However, summary judgment was properly granted on the breach
of contract claims. Defendants were therefore also entitled to judgment as a
matter of law on the conspiracy claim.
Silva v. Town of Springer,
1996-NMCA-022, ¶
25,
121 N.M. 428,
912 P.2d 304 (affirming summary judgment
where plaintiffs failed to establish that defendants committed any illegal acts
resulting in plaintiffs' termination from employment).
{17}
The remaining claims were abandoned, either expressly or because no
argument was made on appeal that summary judgment was improperly granted as to
those claims.
See State v. Pettigrew,
116 N.M. 135, 137-38,
860
P.2d 777, 779-80 (stating that issues "raised at earlier stages in the
appellate proceedings but not argued in the briefs, are deemed
abandoned").
{18}
The order granting Defendants summary judgment is affirmed.
RODERICK T. KENNEDY, Judge