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Kelly Armstrong, appellee, 

Clarkson College, appellan

___ N.W.2d ___

Filed September 1, 2017. No. S-16-717.

1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling 

on a motion for directed verdict, an appellate court must treat the motion 

as an admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such being the 

case, the party against whom the motion is directed is entitled to have 

every controverted fact resolved in its favor and to have the benefit of 

every inference which can reasonably be deduced from the evidence.

2. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. Contracts: Appeal and Error. The formation and terms of an implied 

contract are questions of fact, which an appellate court reviews for 

clear error.

5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

6. Rules of Evidence: Appeal and Error. When the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

7. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

8. Jury Instructions: Pleadings: Evidence. A litigant is entitled to 

have the jury instructed upon only those theories of the case which 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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are presented by the pleadings and which are supported by competent evidence.

9. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s failure to 

give the requested instruction.

10. Jury Instructions. Whether the jury instructions given by a trial court 

are correct is a question of law.

11. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

12. ____: ____. It is not error for a trial court to refuse a requested instruction if the substance of the proposed instruction is contained in those 

instructions actually given.

13. ____: ____. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues 

submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

14. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial or, in the alternative, to alter or amend 

the judgment, for an abuse of discretion.

15. 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.

16. Contracts: Parties: Intent. An implied in fact contract arises where the 

intention of the parties is not expressed in writing but where the circumstances are such as to show a mutual intent to contract.

17. Contracts: Parties. The requisite mutuality for an enforceable contract 

is absent when one of the contracting parties is bound to perform, and 

the rights of the parties exist at the option of one only.

18. Contracts: Intent. Where an implied in fact contract exists, its terms 

may be shown by the surrounding facts and circumstances giving rise 

to the contract, the conduct of the parties when performing under the 

contract, or a general reasonableness standard.

19. ____: ____. As a general matter, the terms of an implied contract 

are a question of fact to be determined by the jury based on the evidence presented.

20. Pleadings. An affirmative defense raises a new matter which, assuming the allegations in the petition to be true, constitutes a defense to the 

merits of a claim asserted in the petition.
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21. Colleges and Universities: Breach of Contract. An argument that 

academic deference applies to a decision of a college or university is 

not an affirmative defense, but instead relates to the proper standard 

for reviewing a plaintiff’s claim for breach of contract premised on an 

academic judgment.

22. Colleges and Universities: Courts. Not every decision by an academic 

institution is subject to deference.

23. Directed Verdict: Pleadings. If there are controverted facts to support recovery upon any theory of liability pled by the plaintiff, then a 

directed verdict is properly denied.

24. Contracts. The doctrine of impossibility of performance, often now 

called impracticability of performance, excuses a promisor’s failure to 

perform a duty under a contract where performance has been rendered 

severely impracticable or impossible by unforeseen circumstances.

25. Contracts: Proof. There are three general requirements for the application of the doctrine of impracticability of performance: (1) the occurrence (or nonoccurrence) of the event causing the impracticability 

was unexpected; (2) performance of the duty by the promisor would 

be extremely difficult and burdensome, if not impossible; and (3) 

the promisor did not assume the risk of the event’s occurrence (or 

nonoccurrence).

26. Contracts. Performance of a contractual duty is not impracticable 

merely because it has become inconvenient or more expensive. Mere 

difficulty of performance is not enough.

27. ____. A promisor’s duty to perform will be excused if it is the other 

party’s conduct that makes performance impossible or impracticable.

28. Contracts: Proof. The party invoking the impracticability defense must 

show that he or she used reasonable efforts to surmount the obstacles 

which prevented performance.

29. Jury Instructions: Evidence. A tendered jury instruction is warranted 

by the evidence only if there is enough evidence on the issue to produce 

a genuine issue of material fact for the jury to decide.

30. Damages. A party is required only to mitigate damages that might have 

been avoided by reasonable efforts.

31. ____. In reviewing the reasonableness of a party’s actions to mitigate 

damages, an appellate court often considers three factors: (1) the cost or 

difficulty to the plaintiff of mitigation, (2) the plaintiff’s financial ability 

to mitigate, and (3) the defendant’s actions to inhibit the plaintiff from 

mitigating damages.

32. Administrative Law: Appeal and Error. Under the doctrine of exhaustion of administrative remedies, one must generally exhaust any available administrative remedies before one can seek judicial review.
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33. Administrative Law. The exhaustion of administrative remedies doctrine generally applies to governmental entities.

34. Administrative Law: Appeal and Error. The exhaustion of remedies 

doctrine applies in many cases to private, nongovernmental entities that 

provide internal administrative review procedures.

35. Colleges and Universities: Employment Contracts. Where an 

employer or university provides a mandatory grievance procedure in a 

contract, the enforceability of a party’s rights under the contract is conditioned on the exercise of that grievance procedure.

36. Contracts: Appeal and Error. Mandatory grievance procedures must 

be exhausted before seeking judicial review, because the grievance 

procedure is part of the contractual bargain and defines the rights 

themselves.

37. Administrative Law: Contracts: Proof. The exhaustion of a mandatory grievance procedure in a contract is a condition precedent to enforcing the rights under that contract.

Appeal from the District Court for Douglas County: Marl

A. Polk, Judge. Reversed and remanded for a new tria

Brien M. Welch and Kathryn J. Cheatle, of Cassem, Tierney, 

Adams, Gotch & Douglas, for appellant.

Jason Mario Bruno and Robert S. Sherrets, of Sherrets, 

Bruno & Vogt, L.L.C., for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke, 

Wright, J.

I. NATURE OF CASE

A jury awarded Kelly Armstrong a $1 million verdict on her 

breach of contract claim against Clarkson College (Clarkson). 

Armstrong had been a student at Clarkson, but was placed on 

probation and then administratively withdrawn from the school 

by Clarkson. Clarkson appeals the district court’s denial of its 

motion for a directed verdict, the denial of several requested 

jury instructions, the exclusion of evidence, and the denial of 

its motion for new trial. Because we conclude that the district court erred by refusing to give Clarkson’s requested jury 

instruction on Armstrong’s alleged failure to fulfill a condition 
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precedent by not exhausting the college’s grievance procedure, 

we reverse, and remand for a new trial.

II. BACKGROUND

1. Clarkson’s CRNA Pro

Clarkson is a nonprofit health science college located in 

Omaha, Nebraska. In 2010, Clarkson established a program for 

a master of science in nursing with a specialization in nurse 

anesthesia (CRNA program). After a student graduates from 

the program, the student can take a national examination to 

become a certified registered nurse anesthetist (CRNA).

The CRNA program, like other nurse anesthetist programs, 

has two components, didactic and clinical. Clarkson’s program 

is “front-loaded,” with the completion of the didactic portion 

first, followed by the clinical portion. The didactic portion, 

consisting of coursework, lasts 12 months. The clinical portion 

is completed at various clinical sites and lasts 18 months. In 

the clinical stage of the CRNA program, the students work at 

a hospital under the supervision of the hospital’s CRNA staff, 

gaining experience in nearly every type of case a CRNA would 

encounter in practice. Clarkson contracts with clinical sites 

to provide clinical education for its students. These contracts, 

known as clinical affiliation agreements, outline the obligations 

of both Clarkson and the clinical sites.

When the events underlying this litigation occurred in 2013, 

Clarkson had five primary clinical sites. A primary clinical site 

is one where a student completes the vast majority of his or 

her clinical work. In 2013, Clarkson also had two rural specialty sites where a student in the CRNA program could gain 

experience in a rural hospital setting. These specialty sites are 

designed to supplement the student’s clinical experience, but 

unlike the primary clinical sites, do not provide all of the types 

of experience a student needs to complete his or her clinical requirements.

In the fall of 2011, Armstrong enrolled in the CRNA program. She completed the didactic portion, earning a 3.84 grade 

point average. Armstrong then began the clinical phase of 
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the program and was assigned to the University of Nebraska 

Medical Center (UNMC) as her main clinical site. She then 

began doing a rotation at a specialty clinical site in Red 

Oak, Iowa.

2. Program Handbooks and M

At trial, several of Clarkson’s student handbooks and policy 

manuals were admitted into evidence, including: Clarkson’s 

student handbook, the handbook for nurse anesthesia students, Clarkson’s nurse anesthesia program policies and procedures manual, Clarkson’s nurse anesthesia program clinical 

site manual, and Clarkson’s grievance policy. Clarkson’s Code 

of Conduct (Code of Conduct) is contained within its student 

handbook, which applies to all students, not just those in the 

CRNA program.

Many of the Clarkson handbooks and policies contained 

disclaimers that they were not contractual in nature: the CRNA 

program handbook states, “The information in this syllabus is 

intended to be informational and not contractual in nature,” 

and the CRNA program policies and procedures manual states, 

“The statements contained herein are not to be regarded as an 

offer or contract.” Clarkson’s student handbook and its clinical site manual do not appear to contain contractual disclaimers. Most of the handbooks also contained clauses reserving 

Clarkson’s right to change the policies at any time.

Also admitted was the code of ethics for the CRNA, which 

is adopted and promulgated by the American Association of 

Nurse Anesthetists (AANA). Clarkson students in the CRNA 

program are required to follow this code of ethics (AANA 

Code of Ethics) under the CRNA program handbook.

3. AANA Con

When Armstrong was approximately halfway done with the 

clinical portion of the CRNA program, she decided to attend 

a national AANA conference in Washington, D.C. Armstrong 

testified at trial that she and Kristal Hodges, who Armstrong 

described as her “best friend in the program at the time,” 
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decided to go, because they thought the conference would be 

fun and would provide a break from the rigors of clinical work. 

The conference took place on April 14 to 17, 2013. Armstrong 

and Hodges were the only two students in the Clarkson CRNA 

program who attended this national conference.

4. AANA Political Action C

Potomac Cruise Fundrai

The AANA conference was 4 days long, Sunday through 

Wednesday. The conference on Sunday featured discussions on 

the legislative and political issues facing the nurse anesthetist 

profession. Hodges arrived on Saturday, the day before the 

conference, while Armstrong arrived on Sunday afternoon. The 

two stayed in the same hotel room.

On Sunday night, AANA’s political action committee hosted 

a fundraiser event for the conference attendees. The fundraiser was a boat cruise on the Potomac River. The attendees 

were instructed to wear either professional attire or dress for 

the event’s 1980’s theme. Many members of the Nebraska 

Association of Nurse Anesthetists and Nebraska CRNA’s were 

in attendance at the fundraiser.

Conference attendees were provided bus transportation to 

the fundraiser boat ride. Alcohol was served at the fundraiser; 

the attendees were given two drink tickets, and glasses of 

champagne were offered to them as they arrived on the boat.

Armstrong testified that she consumed only four alcoholic 

drinks on the cruise. She testified that she used her two drink 

tickets for two beers, but did not remember finishing her 

champagne. She said that Timothy Glidden, the chief CRNA at 

UNMC and Armstrong’s clinical supervisor, bought her a beer 

as did another individual. Armstrong estimated that the fundraiser lasted about 4 hours.

5. Bus Ri

After the fundraiser ended, the attendees were transported 

by bus back to the hotel. The bus was filled with conference 

and fundraiser attendees, including many from Nebraska. Also 
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on the bus was Nancy Gondringer, the federal political director and past president of the Nebraska Association of Nurse 

Anesthetists and a member of the “Small States Committee” 

of the AANA. Glidden was on the bus, as was another UNMC 

CRNA and also a Clarkson CRNA instructor. Dennis Bless, the 

then-incoming president of the AANA, was also on the bus. 

Other students in CRNA programs and CRNA’s from Nebraska 

and other states rode on the bus as well.

There was some conflict in the witnesses’ testimony at trial 

about what happened on the bus ride. Armstrong testified that 

she got on the bus and took a seat near Bless. She said that 

she and Bless were joking about the 1980’s costumes that 

some were wearing as part of the fundraiser’s theme. Hodges 

was seated behind her. Armstrong said that she asked for the 

fake moustache that Bless had as part of his 1980’s costume 

and then stood up and turned around to Hodges, placed the 

moustache on her stomach, just below her belly button, and 

made a joke about a term used to reference ungroomed pubic 

hair. Armstrong said that she had used the term in the past as a 

nickname for Hodges or to tease her and that it was an “inside 

joke” between the two about Hodges’ being single, because “if 

you’re going to go out and start dating, you better clean that 

up.” Armstrong testified that she told Bless that ungroomed 

pubic hair could have been part of her 1980’s-themed costume, after which she obtained his fake moustache to make 

her joke.

Other witnesses, such as Hodges, Gondringer, and Glidden, 

gave a slightly different account. They testified that Armstrong 

held her pants down near her pubic symphysis, with the moustache just above her pants, walking up and down the aisle of 

the bus, saying things like, “Look at my [ungroomed pubic 

hair],” and “[t]his is how yours looks like” to Hodges. Hodges, 

Gondringer, and Glidden told Armstrong to stop several times, 

after which she eventually sat down. But Armstrong testified 

that the other witnesses’ accounts of her behavior were “exaggerated quite a bit.”
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6. Probati

(a) Return From Conference

As Armstrong was en route home from the conference, 

Hodges called Armstrong because she was concerned that 

Armstrong had missed her flight because she did not wake 

up in time that morning. According to Hodges, when they 

spoke over the telephone, Armstrong told Hodges that Hodges 

did not know how to have fun and was “too uptight.” They 

argued about what had happened at the conference. Hodges 

told Armstrong that Armstrong may be in some trouble with 

Clarkson, because “[t]here were so many people there” and 

“[s]omebody’s going to say something.”

Dr. Mary Hoversten, the director of Clarkson’s CRNA program, soon received word of the incident on the fundraiser 

bus ride. The day the conference ended, about 3 days after the 

incident, Hoversten received a telephone call from Hodges, 

informing her about the incident. Hodges was emotional on the 

call and told Hoversten that Armstrong’s behavior was unprofessional and very embarrassing to her. The next morning, 

Hoversten informed her supervisor of the situation and they 

decided to meet with Armstrong when she returned. Hoversten 

spoke to Armstrong over the telephone and told her not to 

return to her specialty clinical site, but to return to Clarkson’s 

campus for a meeting. According to Hoversten, Armstrong 

acknowledged during the call that her behavior was unprofessional and that she was sorry about it.

Hoversten spoke with Glidden over the telephone. Glidden 

described what he had observed on the bus ride and that he 

thought Armstrong’s behavior was unprofessional and inappropriate. He said that he was not sure whether Armstrong would 

be allowed back at UNMC, her main clinical site. Hoversten 

also called Gondringer about the incident on the bus ride.

(b) April 23, 2013, Meeting

On April 23, less than a week after the conference ended, 

Armstrong had a meeting at Clarkson. In attendance at the 

meeting were Armstrong; Hoversten; Dr. Tony Damewood, the 
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vice president of operations for Clarkson; and the vice president of academic affairs. Armstrong brought an attorney to the 

April 23 meeting. According to Armstrong, her attorney was 

not allowed in the meeting by Damewood, who made him wait 

in the hallway.

The decision was made to place Armstrong on probation for 

violating the AANA Code of Ethics and the CRNA program 

handbook. Armstrong was told at the meeting that she would 

not be able to return to her specialty clinical site due to the 

rule in the CRNA program handbook that students on clinical 

probation cannot work at specialty clinical sites. According to 

Hoversten’s notes from the meeting, the possibility that her 

clinical site may not allow her to return due to the incident 

was discussed.

Damewood, who was not a part of the CRNA program, was 

present at the April 23 meeting because of his role in Clarkson’s 

student assistance program. Damewood told Armstrong at the 

meeting that she had violated the Clarkson Code of Conduct. 

The Code of Conduct is a part of the Clarkson student handbook, applicable to all Clarkson students, not just the students 

in the CRNA program. The Code of Conduct has different 

procedural requirements for student discipline than the procedures for placing a student on clinical probation under the 

CRNA program handbook. Damewood said at trial that, in retrospect, he did not believe that Armstrong violated the Code of 

Conduct. Damewood never told Armstrong that he was incorrect to state that her conduct violated the Code of Conduct. 

No charges were ever filed against Armstrong under the Code 

of Conduct.

(c) April 24, 2013, Meeting

The next day, April 24, the academic progression committee met to formally notify Armstrong that she was being 

placed on probation and discuss the probation terms. Present 

at the meeting were Armstrong, Hoversten, and Dr. Ann 

Glow, the assistant director of the CRNA program. The notes 

from the meeting state that another faculty member and two 
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UNMC clinical coordinators were absent and would be briefed 

on the meeting.

At the April 24 meeting, Armstrong was given a formal 

notice by Hoversten that she was being placed on probation. 

The general plan for probation was discussed. The tentative 

plan was for Armstrong to return to her primary clinical site, 

UNMC, pending the approval of Glidden. Armstrong was told 

of UNMC’s right to terminate her clinical experience. The 

plan, if UNMC did not allow her to return, was that Clarkson 

would “make a reasonable attempt to place [Armstrong] in an 

alternative site. . . . If this is unsuccessful, [Armstrong] will 

be given the option to withdraw from the program or be terminated. [Armstrong] is made aware of [Clarkson’s] Student 

Grievance Policy . . . .”

Hoversten told Armstrong that she was being placed on 

probation due to a violation of rule 3.4 of the AANA Code 

of Ethics, which states that “[t]he CRNA is responsible and 

accountable for his or her conduct in maintaining the dignity 

and integrity of the profession.” Armstrong was given a copy 

of this portion of the AANA Code of Ethics.

Also discussed at the meeting was the CRNA program handbook rule regarding practice and professional ethics. The rule 

regarding professionalism states that “[s]tudents shall conduct 

themselves in a professional and respectable manner during 

class time, clinical time and during professional meetings and 

seminars.” The subpart of the professionalism rule related to 

practice and professional ethics incorporates the AANA Code 

of Ethics and makes it applicable to students in the Clarkson 

CRNA program:

The program expects students to adopt and observe the 

AANA Code of Ethics. Violations of this ethical conduct 

standard will be regarded as professional and academic 

misconduct and failure to meet clinical performance 

objectives, and be subject to review as such.

If a student is found to be noncompliant with this 

policy disciplinary actions will be taken, up to and/or 

including dismissal from the Program.
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Additionally, the CRNA program handbook’s probation policy and dismissal procedure was discussed. That provision distinguishes between academic probation and clinical probation. 

A student must, at a minimum, be placed on clinical probation 

for certain reasons, including “[f]ailure to comply with the 

AANA ethical code of conduct.” It also states that a student 

may be dismissed from the program for failing to comply with 

the AANA Code of Ethics. Armstrong was also given a copy of 

this portion of the CRNA program handbook.

The program’s withdrawal and grievance policies were also 

discussed with Armstrong. The grievance policy allows students to grieve a complaint that “a specific decision or action 

that affects the student’s academic record or status has violated published policies and procedures, or has been applied 

to the grievant in a manner different from that used for other 

students.” The policy details the procedure for filing a grievance, including that grievances must be filed no later than 7 

days after the incident in question. Grievances are heard by a 

grievance committee, which is composed of five members: an 

academic council member, a faculty member from the faculty 

senate executive committee, a student representative, a director from student services, and the vice president of academic 

affairs (who votes only in case of a tie vote), each of which 

must be without conflicts of interest. The policy states that 

“[t]he Grievance Committee is the designated arbiter of disputes within the student community in cases, which do not 

involve a violation of the Student Code of Conduct . . .” and 

that “[d]ecisions made by the Grievance Committee and/or 

[vice president of academic affairs] shall be final.” Armstrong 

was provided a copy of the grievance procedure and a grievance form.

Armstrong was given a copy of the withdrawal policy in 

the CRNA program handbook by Hoversten so that if she 

were unable to progress in the program, she could withdraw 

from the program and reapply at another program without 

having a dismissal on her academic record. Armstrong was 

also provided a copy of the CRNA program handbook policy 
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on time off during the program, which states that during the 

clinical phase, students are allowed only 25 days of planned or 

unplanned absences.

Armstrong agreed to the terms of the probation. She testified 

that she felt like she had no choice but to agree to the probation 

“because there was no other option. I felt like the other option 

would be you’re done, like, you can’t go on any further, so 

there was really no choice.”

(d) April 25, 2013, Meeting

Another meeting was held on April 25 with Armstrong, 

Hoversten, and Glow. Hoversten learned earlier that day that 

Glidden and UNMC’s CRNA education committee had unanimously decided not to allow Armstrong back at UNMC. 

Glidden said at trial that he had a patient safety concern 

based on what he observed of Armstrong’s behavior on the 

Washington, D.C., trip. Hoversten told Armstrong that she 

would try to find her another clinical site. Hoversten and Glow 

told Armstrong that they were her advocates.

Hoversten sent emails to the CRNA program’s other primary 

clinical sites to see if they would be willing to take Armstrong. 

These emails were substantially similar and read:

I have a situation with a student. She has recently been 

put on probation due to misconduct. Her primary clinical 

site has made the decision not to allow her to return as a 

[CRNA program student]. Her problems are behavioral 

not academic. This is not a patient safety issue.

As her program director, I am making every effort to 

reassign her to another site. If you feel you have enough 

room for a second senior Clarkson student and your group 

would be willing to take this on, please call me at your 

earliest convenience. If not, let me know so I can move 

forward with this search.

Hoversten also spoke to some of the clinical site representatives over the telephone. After receiving Hoversten’s communications, all of the clinical sites declined to take Armstrong. 

Hoversten said that she felt obligated to be honest with the 
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clinical sites that Armstrong was on probation, but also wanted 

to let them know that Armstrong posed no risk to patient 

safety and did not have any academic problems.

Hoversten testified that she could not have opened a 

new clinical site to accommodate Armstrong, as Armstrong 

requested, because the process of approving a new site would 

take 6 months to a year. Hoversten also could not have 

allowed Armstrong to return to her specialty clinical rotation 

temporarily, because under the clinical probation policy in the 

CRNA program handbook, students may not be on a specialty 

clinical rotation while on clinical probation. Hoversten testified that she could not extend the program and put her in a 

clinical site because that would take up a clinical spot reserved 

for someone in the class behind her.

7. Administrative Withdra

After all of Clarkson’s clinical sites refused to take 

Armstrong, she was without a clinical site. Under the CRNA 

program handbook, students are allowed a total of 25 absences 

during their clinical phase. Soon, Armstrong had run out of 

allowed absences. Hoversten told her that she needed to withdraw from the CRNA program, as was the plan under the 

probation terms if another clinical site could not be found. 

Armstrong was not willing to withdraw.

On May 9, Hoversten spoke with the Clarkson registrar 

about withdrawing Armstrong from the program. Rather than 

dismissing Armstrong, Hoversten administratively withdrew 

her from the program. Hoversten was told by the registrar that 

Armstrong’s academic record would show that she withdrew, 

but would not show whether it was a student dismissal or an 

administrative dismissal. Hoversten testified that by administratively withdrawing Armstrong rather than dismissing her, 

she was trying to help her in case she wanted to apply to 

another program.

8. Lawsuit and T

Armstrong sued Clarkson for breach of contract. Before 

trial, the district court granted Armstrong’s motion in limine 
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to exclude any reference at trial to a prior incident of alleged 

plagiarism involving Armstrong. For purposes of the motion, 

the court admitted an “Academic Honesty Conference Form.” 

According to the form, Armstrong’s “senior project [was] a 

continuation of a previous student’s project. [Armstrong] submitted the first section of her paper in which the majority was 

identical to the former student’s paper, including the entire literature review.” Under the student comments, it states, “It was 

my thought that by taking over another student’s project I was 

continuing where it left off. I now understand this was wrong 

. . . .” She was allowed to start her coursework over with a 

new assignment schedule. Armstrong stated in her deposition 

that she did not commit plagiarism and that the incident was 

a misunderstanding.

At the jury instruction conference, Clarkson requested a jury 

instruction on failure to fulfill a condition precedent, which 

the district court denied. Clarkson claimed that Armstrong 

failed to fulfill a condition precedent by failing to take 

advantage of Clarkson’s grievance procedure before filing a 

lawsuit.

Clarkson also requested a jury instruction on impossibility of performance, which the district court denied. Clarkson 

argued that the actions of Armstrong and the clinical sites 

made it impossible to perform its obligation to provide a clinical site for Armstrong.

The district court allowed Clarkson to amend its pleading 

to conform to the evidence on the issue of mitigation of damages. But the district court denied Clarkson’s requested jury 

instruction on mitigation of damages. Clarkson argued that 

Armstrong could have mitigated her damages by reapplying to 

Clarkson or other CRNA programs.

The jury returned a verdict for Armstrong in the amount of 

$1 million.

After trial, Clarkson moved to set aside the verdict or, in 

the alternative, moved for a new trial. The motion was based 

on the district court’s failure to grant Clarkson’s motion for 

directed verdict at the close of Armstrong’s case in chief and 
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at the close of her rebuttal, the district court’s failure to give 

Clarkson’s requested jury instructions, and other grounds. The 

district court denied the motion.

Clarkson then brought this appeal. We granted Clarkson’s 

petition to bypass the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Clarkson assigns several errors. They are, restated, that the 

district court (1) erred in not granting its motion for directed 

verdict, because there was no evidence that it acted arbitrarily 

and capriciously; (2) abused its discretion in excluding evidence of Armstrong’s plagiarism; (3) erred by not instructing 

the jury on Armstrong’s alleged failure to fulfill a condition 

precedent by not exhausting the school’s internal grievance 

procedure; (4) erred by not instructing the jury on the affirmative defense of “impossibility of performance”; (5) erred 

by not instructing the jury on Armstrong’s alleged failure to 

mitigate her damages; and (6) erred in not granting Clarkson’s 

motion to set aside the verdict or for a new trial for the 

above errors.

IV. STANDARD OF REVIEW

[1,2] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as 

an admission of the truth of all competent evidence submitted 

on behalf of the party against whom the motion is directed; 

such being the case, the party against whom the motion is 

directed is entitled to have every controverted fact resolved in 

its favor and to have the benefit of every inference which can 

reasonably be deduced from the evidence.1 A directed verdict 

is proper at the close of all the evidence only when reasonable 

minds cannot differ and can draw but one conclusion from the 

evidence, that is, when an issue should be decided as a matter 

of law.2

1 Winder v. Union Pacific RR. Co., 296 Neb. 557, 894 N.W.2d 343 (2017).

2 Id.
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[3,4] An appellate court independently reviews questions of 

law decided by a lower court.3 The formation and terms of an 

implied contract are questions of fact, which an appellate court 

reviews for clear error.4

[5-7] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; 

judicial discretion is involved only when the rules make discretion a factor in determining admissibility.5

 When the Nebraska 

Evidence Rules commit the evidentiary question at issue to 

the discretion of the trial court, an appellate court reviews the 

admissibility of evidence for an abuse of discretion.6 In a civil 

case, the admission or exclusion of evidence is not reversible 

error unless it unfairly prejudiced a substantial right of the 

complaining party.7

[8-13] A litigant is entitled to have the jury instructed upon 

only those theories of the case which are presented by the 

pleadings and which are supported by competent evidence.8

To establish reversible error from a court’s failure to give a 

requested jury instruction, an appellant has the burden to show 

that (1) the tendered instruction is a correct statement of the 

law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court’s failure to give the requested instruction.9

 Whether the jury instructions given by a trial court are correct is a question of law.10

3 Donut Holdings v. Risberg, 294 Neb. 861, 885 N.W.2d 670 (2016).

4 See, City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809 

N.W.2d 725 (2011); K.M.H. v. Lutheran Gen. Hosp., 230 Neb. 269, 431 

N.W.2d 606 (1988).

5 Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 (2016).

6 Id.

7 Id.

8 RM Campbell Indus. v. Midwest Renewable Energy, 294 Neb. 326, 886 

N.W.2d 240 (2016).

9 Id.

10 Anderson v. Union Pacific RR. Co., 295 Neb. 785, 890 N.W.2d 791 

(2017).
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When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusion reached by the trial court.11 However, it is not error for 

a trial court to refuse a requested instruction if the substance 

of the proposed instruction is contained in those instructions 

actually given.12 If the instructions given, which are taken 

as a whole, correctly state the law, are not misleading, and 

adequately cover the issues submissible to a jury, there is no 

prejudicial error concerning the instructions and necessitating 

a reversal.13

[14,15] An appellate court reviews a denial of a motion for 

new trial or, in the alternative, to alter or amend the judgment, 

for an abuse of discretion.14 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.15

V. ANALYSIS

1. Denial of Clarkson’s 

for Directed Ve

We first address Clarkson’s assertion that the district court 

erred in not granting its motion for directed verdict. The parties do not dispute that there was a contractual relationship 

between them, but Clarkson asserts that its actions were subject 

to academic deference such that no breach occurs unless its 

actions are arbitrary and capricious. It argues it was entitled 

to judgment as a matter of law because there was no evidence 

it acted arbitrarily and capriciously in its actions leading to 

Armstrong’s damages.

11 Id.

12 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 

(2015).

13 Id.

14 Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).

15 Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).
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[16] A contract may be express, implied, written, or oral.16

An implied in fact contract arises where the intention of the 

parties is not expressed in writing but where the circumstances 

are such as to show a mutual intent to contract.17 We conclude 

that the relevant terms of the contract between Clarkson and 

Armstrong are implied.

[17] It is clear that the Clarkson student handbooks do 

not express in writing the relevant terms of the contract 

between Clarkson and Armstrong. Where an employee handbook expressly states that it creates no contractual obligations, 

we have refused to treat it as creating any such obligations.18

Moreover, the requisite mutuality for an enforceable contract 

is absent when one of the contracting parties is bound to 

perform, and the rights of the parties exist at the option of 

one only.19

Clarkson’s CRNA program handbook, which Clarkson concluded Armstrong violated and under which she was placed 

on probation, states that “[t]he statements contained herein 

are not to be regarded as an offer or contract.” It further 

states that “[t]he information in this syllabus is intended to be 

informational and not contractual in nature” and that Clarkson 

“reserves the right to amend, alter, change, or modify the 

provisions of this syllabus at any time and in any manner 

. . . .” Similar language is found in many of Clarkson’s other 

handbooks. Because these student handbooks both expressly 

state they create no contractual obligations and they reserve to 

16 Fast Ball Sports v. Metropolitan Entertainment, 21 Neb. App. 1, 835 

N.W.2d 782 (2013).

17 Donut Holdings v. Risberg, supra note 3.

18 See Hillie v. Mutual of Omaha Ins. Co., 245 Neb. 219, 512 N.W.2d 358 

(1994).

19 See, id.; Millien v. Colby College, 874 A.2d 397 (Me. 2005) (holding in 

similar case that while contractual relationship existed between student 

and university, student handbook was not enforceable contract because of 

its reservation clause that allowed university power to unilaterally alter its 

terms).
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Clarkson the power to alter the provisions of the handbooks at 

any time and in any manner, the relevant terms of the contract 

between Clarkson and Armstrong are implied.

[18,19] Where an implied in fact contract exists, its terms 

may be shown by the surrounding facts and circumstances 

giving rise to the contract, the conduct of the parties when 

performing under the contract, or a general reasonableness 

standard.20 And, as a general matter, the terms of an implied 

contract are a question of fact to be determined by the jury 

based on the evidence presented.21

Clarkson argues that all its actions relevant to Armstrong’s 

claimed damages constituted academic judgments that are entitled to deference. Academic deference is given to the expert 

evaluation of cumulative information involved in academic 

decisionmaking.22

For several reasons, Armstrong asserts that the academic 

deference standard does not apply in this case. Alternatively, 

Armstrong argues that the deferential standard for academic 

judgments constitutes an affirmative defense that was waived 

and that there was evidence from which the jury could have 

concluded that Clarkson’s actions were arbitrary and capricious.

[20,21] We find no merit to Armstrong’s claim that the deferential standard was an affirmative defense. An affirmative 

defense raises a new matter which, assuming the allegations 

in the petition to be true, constitutes a defense to the merits of 

a claim asserted in the petition.23 Clarkson’s argument about 

20 See, Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014); City of 

Scottsbluff v. Waste Connections of Neb., supra note 4; K.M.H. v. Lutheran 

Gen. Hosp., supra note 4.

21 See, City of Scottsbluff v. Waste Connections of Neb., supra note 4; K.M.H. 

v. Lutheran Gen. Hosp., supra note 4.

22 See, Doe v. Board of Regents, 287 Neb. 990, 846 N.W.2d 126 (2014); Doe 

v. Board of Regents, 283 Neb. 303, 809 N.W.2d 263 (2012); Doe v. Board 

of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).

23 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 

N.W.2d 1 (2016).
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the deferential standard applicable to academic judgments 

does not raise a new matter, but instead relates to the proper 

standard for reviewing a plaintiff’s claim for breach of contract premised on an academic judgment.24

We also reject Armstrong’s assertion that academic deference applies only to state-run universities and only to due process rather than contract claims. In Doe v. Board of Regents,

25

we held that a university’s academic judgments are entitled to 

substantial deference in a breach of contract claim contesting 

the medical school’s academic evaluation of the plaintiff’s professionalism while performing his residency, and its ultimate 

decision of dismissal. Virtually all authorities hold that deference is due the academic judgments of colleges and universities in contract claims, regardless of whether the institution is 

private or public.26

[22,23] But it does not follow that every decision by an 

academic institution is subject to deference. The parties’ arguments on appeal illustrate that although courts extend academic 

24 See cases cited supra note 22.

25 Doe v. Board of Regents, supra note 22, 283 Neb. 303, 809 N.W.2d 263 

(2012).

26 See Chang v. Purdue University, 985 N.E.2d 35, 47 (Ind. App. 2013) 

(holding in breach of contract claim against university arising from 

dismissal of student for unprofessional behavior that “[o]ur sole function 

when reviewing disciplinary actions such as in the present case is to 

determine whether the educational institution acted illegally, arbitrarily, 

capriciously, or in bad faith”). See, also, Mangla v. Brown University, 

135 F.3d 80 (1st Cir. 1998); Doe v. Brown University, 209 F. Supp. 3d 

460 (D.R.I. 2016); Holert v. Univ. of Chicago, 751 F. Supp. 1294 (N.D. 

Ill. 1990); Seitz-Partridge v. Loyola University, 409 Ill. App. 3d 76, 948 

N.E.2d 219, 350 Ill. Dec. 150 (2011); Abdullah v. State, 771 N.W.2d 246 

(N.D. 2009); Kashmiri v. Regents of University of Cal., 156 Cal. App. 4th 

809, 67 Cal. Rptr. 3d 635 (2007); Raethz v. Aurora University, 346 Ill. 

App. 3d 728, 805 N.E.2d 696, 282 Ill. Dec. 77 (2004); Harwood v. Johns 

Hopkins, 130 Md. App. 476, 747 A.2d 205 (2000); Tedeschi v. Wagner 

Coll., 49 N.Y.2d 652, 404 N.E.2d 1302 (1980); Lexington Theological 

Seminary v. Vance, 596 S.W.2d 11 (Ky. App. 1979). See, generally, Annot., 

47 A.L.R.5th 1 (1997).
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deference to some disciplinary judgments involving specialized 

academic or professional expertise, when such expertise comes 

into play is often less than clear.27 Regardless of whether the 

deferential standard applies to Clarkson’s other decisions, we 

find that academic deference does not apply to its failure 

to provide Armstrong with a clinical site. And if there are 

controverted facts to support recovery upon any theory of 

liability pled by Armstrong, then the directed verdict was properly denied.28

One of the theories presented by Armstrong in her complaint, and on which the jury was instructed, was that Clarkson 

breached its contract with Armstrong by failing to provide 

her with a clinical site or the necessary clinical training to 

complete the CRNA program. Armstrong testified that prior 

to enrolling at Clarkson, Hoversten told her that Clarkson had 

affiliation agreements with different clinical sites and told her 

that she would be able to obtain the clinical hours she needed 

to graduate. Hoversten testified at trial that Clarkson was 

obligated to provide Armstrong with a clinical site as part of 

the program.

We conclude that Clarkson did not “actually exercise professional judgment”29 when it failed to provide Armstrong 

with a clinical site. Clarkson does not argue that it prevented 

27 See, generally, 47 A.L.R.5th, supra note 26.

28 See, MacDonald Engineering Company v. Hover, 290 F.2d 301 (8th Cir. 

1961); Byrd v. Delasancha, 195 S.W.3d 834 (Tex. App. 2006); Gill Const., 

Inc. v. 18th & Vine Authority, 157 S.W.3d 699 (Mo. App. 2004); Springer 

v. Haugeberg, Rueter, Stone & Gowell, 124 Or. App. 2, 860 P.2d 912 

(1993); Atkins v. City Finance Co., 683 S.W.2d 331 (Tenn. App. 1984); 

Campbell v. Brinson, 89 Ariz. 197, 360 P.2d 211 (1961).

29 See Raethz v. Aurora University, supra note 26, 346 Ill. App. 3d at 732, 

805 N.E.2d at 699, 282 Ill. Dec. at 81 (“a court may not override the 

academic decision of a university ‘unless it is such a substantial departure 

from accepted academic norms as to demonstrate that the person or 

committee responsible did not actually exercise professional judgment,’” 

quoting Regents of University of Michigan v. Ewing, 474 U.S. 214, 106 S. 

Ct. 507, 88 L. Ed. 2d 523 (1985)).
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Armstrong from obtaining a clinical site for some academic 

reason or as punishment for her misconduct. Quite the opposite, Clarkson argues in another assignment of error that its 

ability to provide a clinical site was rendered impossible by 

the clinical sites’ decisions not to take Armstrong. That is, 

Clarkson argues that Armstrong’s inability to obtain a clinical 

site was not Clarkson’s decision, but the decision of the clinical 

sites. Clarkson is certainly not entitled to deference for a decision that it claims it did not make.

Clarkson and Armstrong disagree about Clarkson’s contractual duty to provide a clinical site. The disagreement is whether 

the duty was a one-time duty that Clarkson performed when it 

initially provided Armstrong with her clinical site at UNMC or 

was an ongoing duty throughout the duration of Armstrong’s 

time in the program, such that Clarkson had a duty to find her 

a different clinical site once UNMC refused to allow her to 

return when she was placed on probation.

The terms of that duty were a question for the jury. The 

jury could have reasonably concluded that Clarkson’s duty was 

ongoing and that it breached its duty when it failed to provide 

her a clinical site after she was placed on probation and UNMC 

refused to allow her to return there.

Additionally, the jury could have concluded that Clarkson 

failed to take reasonable steps to find Armstrong another 

clinical site in accord with the terms of her probation. At trial, 

Armstrong testified that she agreed to the terms of her probation, and the jury could have reasonably found that these 

terms modified the contract between Clarkson and Armstrong. 

Broadly speaking, the terms were: Armstrong would return to 

her primary clinical site, UNMC, if allowed back by UNMC; 

Clarkson would “make a reasonable attempt” to place her at 

another clinical site if UNMC did not allow her back; and 

if no site were found, she would either withdraw or be dismissed from the program. The notes from the initial meeting 

state that if UNMC would not allow Armstrong to return, 

“Hoversten would do everything she can to retain a clinical site 

within reason.”
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The jury could have concluded that Clarkson failed to make 

a reasonable attempt or failed to do everything it could within 

reason to find Armstrong another site. While Clarkson made 

some attempts to obtain a site for Armstrong after UNMC 

refused to allow her back—sending an email to its other 

clinical sites and making some telephone calls—whether these 

efforts were reasonable was a question for the jury. The jury 

could have reasonably concluded that Clarkson’s efforts were 

not reasonable.

We need not decide in this appeal whether Clarkson’s determination of the nature and type of professionalism that is 

required of nurse anesthetists and its CRNA program students, 

and its determination that Armstrong should be placed on 

probation, is the type of academic judgment to which courts 

should defer. Neither do we need to determine whether reasonable minds could have differed as to whether Clarkson acted 

arbitrarily and capriciously in determining that Armstrong acted 

unprofessionally and that her actions warranted probation. The 

district court did not err in denying Clarkson’s motion for 

directed verdict, because the jury could have rendered a verdict 

for Armstrong based on Clarkson’s failure to provide her with 

a clinical site, an action that under the facts of this case was 

entitled to no deference.

2. Exclusion of Clarkson’s Ev

Armstrong’s Alleged Plagia

Clarkson argues that the district court erred by granting Armstrong’s motion in limine to exclude evidence of 

Armstrong’s alleged plagiarism. It argues that the plagiarism 

was a part of the res gestae of its decision to place Armstrong 

on probation, which led to her administrative withdrawal. 

Armstrong argues that this evidence was properly excluded 

because it is not relevant and would be unfairly prejudicial. We 

conclude that the district court did not abuse its discretion in 

excluding evidence of the alleged plagiarism.

In a pretrial deposition, Hoversten said that Armstrong’s 

inability to progress in the program was “the only reason why 
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she was withdrawn.” But at trial, Clarkson made an offer of 

proof that if allowed to testify, “Hoversten would be able 

to explain the issues concerning plagiarism and the reason 

why that entered in to her ultimate decisions with respect 

to [Armstrong].”

One of the reasons for the exclusion of the plagiarism evidence advanced by Armstrong in her pretrial motion in limine 

and on appeal is that it would violate Neb. Evid. R. 403, Neb. 

Rev. Stat. § 27-403 (Reissue 2016). Under rule 403, evidence, 

even if relevant, “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation 

of cumulative evidence.”30

Here, there is no question that allegations of plagiarism 

would carry a risk of unfair prejudice. The allegation could 

significantly affect the jury’s evaluation of Armstrong’s credibility. And the evidence presented at trial affirmatively shows 

that the alleged plagiarism, which Armstrong contends was a 

misunderstanding, played a minimal role, if any, in Clarkson’s 

decision to discipline Armstrong. Moreover, Hoversten testified in her pretrial deposition that Armstrong’s inability to 

progress in the program was the only reason for her dismissal, 

in contradiction to the offer of proof made at trial. The evidence of the alleged plagiarism carried little or no probative 

value and a significant risk of unfair prejudice. Under these 

circumstances, we conclude that the district court did not abuse 

its discretion in excluding evidence of Armstrong’s alleged 

plagiarism.

3. Denial of Clarkson’s Requ

Jury Instruct

Clarkson assigns error to the district court’s refusal to give 

three of its proposed jury instructions. Clarkson’s tendered jury 

instructions on the impossibility of Clarkson’s performance, 

30 See, generally, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
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Armstrong’s alleged failure to mitigate her damages, and 

Armstrong’s alleged failure to fulfill a condition precedent.

To establish reversible error from a court’s failure to give 

a requested jury instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

failure to give the requested instruction.31

(a) Impossibility of Performance

Clarkson argues that the district court erred in not giving 

its proffered jury instruction on impossibility of performance. 

Clarkson argues that Armstrong’s conduct and the clinical 

site’s refusal to accept her made it impossible for Clarkson to 

perform its duties under the contract. Armstrong argues that 

Clarkson’s performance was not impossible, because it should 

not have disciplined her in the first place, and that it could 

have demanded that UNMC allow her back, done a better job 

advocating for her to other clinical sites, or allowed her to 

stay at her specialty clinical site temporarily. We conclude that 

the district court did not err by failing to give Clarkson’s jury 

instruction on impossibility of performance.

[24,25] The doctrine of impossibility of performance, often 

now called impracticability of performance, excuses a promisor’s failure to perform a duty under a contract where performance has been rendered severely impracticable or impossible 

by unforeseen circumstances.32 The Restatement (Second) 

on Contracts, § 261, entitled “Discharge by Supervening 

Impracticability,” states:

31 RM Campbell Indus. v. Midwest Renewable Energy, supra note 8.

32 See, Turbines Ltd. v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 

(2013); Cleasby v. Leo A. Daly Co., 221 Neb. 254, 376 N.W.2d 312 

(1985); Mohrlang v. Draper, 219 Neb. 630, 365 N.W.2d 443 (1985). See, 

generally, 14 James P. Nehf, Corbin on Contracts § 74 (Joseph M. Perillo 

ed., rev. ed. 2001); 30 Richard A. Lord, A Treatise on the Law of Contracts 

by Samuel Williston § 77 (4th ed. 2004).
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Where, after a contract is made, a party’s performance 

is made impracticable without his fault by the occurrence 

of an event the non-occurrence of which was a basic 

assumption on which the contract was made, his duty 

to render that performance is discharged, unless the language or the circumstances indicate the contrary.33

There are three general requirements for the application of the 

doctrine of impracticability of performance: (1) the occurrence 

(or nonoccurrence) of the event causing the impracticability 

was unexpected; (2) performance of the duty by the promisor 

would be extremely difficult and burdensome, if not impossible; and (3) the promisor did not assume the risk of the event’s 

occurrence (or nonoccurrence).34

[26] Performance of a contractual duty is not impracticable 

merely because it has become inconvenient or more expensive.35 Mere difficulty of performance is not enough.36 As the 

Supreme Court of Colorado explained regarding the distinction 

between impossibility and mere difficulty:

“‘[T]he true distinction is not between difficulty and 

impossibility. A man may contract to do what is impossible . . . . The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have 

been within the contemplation of both parties when they 

entered into the contract. If so, the risk should not fairly 

be thrown upon the promisor.’ . . .”37

[27,28] A promisor’s duty to perform will be excused if it is 

the other party’s conduct that makes performance impossible 

33 Restatement (Second) of Contracts § 261 at 313 (1981) (cited by Cleasby 

v. Leo A. Daly Co., supra note 32).

34 14 Nehf, supra note 32, § 74.1 (Corbin on Contracts).

35 See Mohrlang v. Draper, supra note 32.

36 See id.

37 Littleton v. Emp. Fire Ins. Co., 169 Colo. 104, 108, 453 P.2d 810, 812 

(1969).
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or impracticable.38 And the party invoking the impracticability 

defense must show that he or she used reasonable efforts to 

surmount the obstacles which prevented performance.39

[29] Here, Clarkson’s tendered jury instruction is a correct 

statement of law. It is based on NJI2d Civ. 15.20, entitled 

“Impossibility of Performance.” But Clarkson’s jury instruction 

was not warranted by the evidence. A tendered jury instruction 

is warranted by the evidence only if there is enough evidence 

on the issue to produce a genuine issue of material fact for 

the jury to decide.40 Clarkson’s instruction was not warranted, 

because the difficulty was not unexpected and Clarkson failed 

to take reasonable steps to overcome the difficulty.

For the defense of impracticability of performance to apply, 

the event making performance impracticable must be unexpected. Here, it was not unexpected that a student might 

be placed on probation or that a clinical site might dismiss 

or refuse to accept a student. While the specific details of 

Armstrong’s behavior might have been unexpected, it certainly 

was not unforeseen to Clarkson that a student might act in an 

unprofessional manner. Nor was it unforeseen that a student 

might be placed on probation. This is precisely why Clarkson 

38 See, Hardin v. The Eska Co., Inc., 256 Iowa 371, 377-78, 127 N.W.2d 

595, 598 (1964) (“the rule is well settled that one party to a contract may 

not hamper the efforts of the other in performance according to its terms. .

. . ‘Each party to a contract impliedly agrees not to prevent . . . the other 

party from performing or, . . . to render performance impossible by any 

act of his own’”); 14 Nehf, supra note 32, § 74.3 (Corbin on Contracts). 

Cf. D & S Realty v. Markel Ins. Co., 284 Neb. 1, 816 N.W.2d 1 (2012) 

(discussing the doctrine of prevention); Fast Ball Sports v. Metropolitan 

Entertainment, supra note 16 (same).

39 McCalden v. California Library Ass’n, 955 F.2d 1214 (9th Cir. 1990) 

(superseded by rule on other grounds as stated in Harmston v. City and 

County of San Francisco, 627 F.3d 1273 (9th Cir. 2010)); 30 Lord, supra

note 32, § 77:8 (Williston on Contracts).

40 See, generally, Tapp v. Blackmore Ranch, 254 Neb. 40, 56, 575 N.W.2d 

341, 352 (1998) (“[a] litigant is entitled to have the jury instructed only 

upon those theories of the case which are presented by the pleadings and 

which are supported by competent evidence”).
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has rules regarding professionalism and student probation. 

It is also clear that it was not unforeseen to Clarkson that a 

clinical site might terminate or refuse to accept a student; 

its clinical affiliation agreement with UNMC expressly contemplates this. The agreement provides the conditions under 

which UNMC could terminate a student’s clinical experience 

and provides that Clarkson would not reassign a terminated 

student to UNMC without approval, but that approval “will not 

be unreasonably withheld.” Clarkson’s policies and its clinical 

affiliation agreement unambiguously show that Armstrong’s 

probation and the clinical sites’ refusal to accept her were not 

unexpected. Thus, the doctrine of impracticability of performance cannot apply.

The doctrine of impracticability also does not apply because 

Clarkson failed to use reasonable efforts to overcome the difficulty it faced in performing its duty to provide Armstrong with 

a clinical site. Clarkson failed to make any attempts to enforce 

its rights under its clinical affiliation agreement with UNMC or 

any other sites in order to secure a clinical site for Armstrong. 

The clinical affiliation agreement gives UNMC “the right to 

terminate a student’s clinical experience” in situations where 

“flagrant or repeated violations of [UNMC’s] rules, regulations, policies, or procedures occur.” It also allows UNMC “to 

take immediate action when necessary to preserve the quality 

of patient services and to maintain operation of its facilities 

free from interruption.” No evidence was presented at trial that 

Armstrong violated any rules at UNMC, much less that she 

engaged in flagrant or repeated violations. Nor was any evidence presented that she posed any risk to the quality of patient 

services or was a risk of causing interruption at UNMC. And 

Hoversten stated in her emails to the other clinical sites that 

Armstrong was not a patient safety risk. Clarkson did not make 

any efforts to demand that UNMC perform its obligations 

under the agreement and allow Armstrong to return to complete 

her clinical studies.

As the party invoking the impracticability defense, Clarkson 

must show that it used reasonable efforts to overcome the 
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obstacles which prevented its performance—here, the clinical 

sites’ refusals to accept Armstrong. Because Clarkson failed to 

make any efforts to enforce its rights under the clinical agreement with UNMC or with the other clinical sites, it is not entitled to a defense of impracticability based on their decisions to 

not accept Armstrong. We conclude that the district court did 

not err in refusing to give Clarkson’s tendered jury instruction 

on impossibility of performance.

(b) Mitigation of Damages

Clarkson argues that the district court erred in refusing to 

give its proffered jury instruction on mitigation of damages. It 

claims that Armstrong failed to mitigate her damages by failing 

to reapply for Clarkson’s CRNA program or apply at a nurse 

anesthetist program at another school. Armstrong argues that it 

would have been futile to reapply at Clarkson after it withdrew 

her from the program and that she could not afford to attend a 

nurse anesthetist program at another school. We conclude that 

the district court did not err in refusing Clarkson’s requested 

jury instruction on mitigation of damages.

There is no question that Clarkson’s tendered instruction is 

a correct statement of law.41 It is nearly identical to NJI2d Civ. 

4.70, the model jury instruction on mitigation of damages.

But Clarkson’s proffered jury instruction was not warranted by the evidence. A tendered jury instruction is warranted by the evidence only if there is enough evidence on the 

issue to produce a genuine issue of material fact for the jury 

to decide.42

41 See Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 95, 710 

N.W.2d 71, 80 (2006) (“[t]he general rule is that whenever applicable, the 

Nebraska Jury Instructions are to be used [and the i]nstruction given by 

the district court is taken nearly verbatim from NJI2d Civ. 4.70 and is a 

correct statement of the law” (citations omitted)).

42 See, generally, Tapp v. Blackmore Ranch, supra note 40; Tedd Bish 

Farm v. Southwest Fencing Servs., 291 Neb. 527, 867 N.W.2d 265 

(2015) (discussing jury instruction on mitigation of damages at summary 

judgment stage).
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[30,31] Regarding the mitigation of damages, we have said:

Under the doctrine of avoidable consequences, which 

is another name for the failure to mitigate damages, a 

wronged party will be denied recovery for such losses 

as could reasonably have been avoided, although such 

party will be allowed to recover any loss, injury, or 

expense incurred in reasonable efforts to minimize the 

injury. . . . A plaintiff’s failure to take reasonable steps to 

mitigate damages bars recovery, not in toto, but only for 

the damages which might have been avoided by reasonable efforts.43

A party is required only to mitigate damages that might have 

been avoided by “reasonable efforts.”44 A plaintiff is “‘not 

required to unreasonably exert himself or to incur an unreasonable expense in order to’” mitigate damages.45 In reviewing 

the reasonableness of a party’s actions to mitigate damages, 

we often consider three factors: (1) the cost or difficulty to 

the plaintiff of mitigation, (2) the plaintiff’s financial ability to 

mitigate, and (3) the defendant’s actions to inhibit the plaintiff 

from mitigating damages.46

The first two factors are dispositive here. The only evidence 

presented at trial about Armstrong’s ability to complete her 

degree at another program was her testimony that, according 

to Hoversten and one or two other program directors with 

whom she spoke, nurse anesthesia credits are nontransferable, 

meaning that she would have to start her 30-month program 

43 Borley Storage & Transfer Co. v. Whitted, supra note 41, 271 Neb. at 95, 

710 N.W.2d at 80.

44 See id.

45 Hidalgo Prop., Inc. v. Wachovia Mortg. Co., 617 F.2d 196, 200 (10th Cir. 

1980). See, also, System Components Corp. v. Florida DOT, 14 So. 3d 967 

(Fla. 2009); Coughlin Const. v. Nu-Tec Indus., Inc., 755 N.W.2d 867 (N.D. 

2008); Chicago Title Ins. Co. v. HNB, 87 Ohio St. 3d 270, 719 N.E.2d 955 

(1999); Great American Ins. v. N. Austin Utility, 908 S.W.2d 415 (Tex. 

1995).

46 See Tedd Bish Farm v. Southwest Fencing Servs., supra note 42.
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over from the beginning. According to Armstrong, Hoversten 

told Armstrong that she could reapply at Clarkson, but would 

have to start the program over. Clarkson has the only CRNA 

program in Omaha. There is only one other program in the 

state; according to Armstrong, Glidden—who decided not to 

allow her to return to UNMC—is on the board at that other 

program. And Armstrong also testified that she could not afford 

to reapply and start a CRNA program over.

Thus, according to the evidence presented at trial, in order 

to mitigate her lost future income damages, Armstrong would 

have had to start a 30-month program over; pay for that program, which she could not afford; and likely move out of 

state. A plaintiff is not required to make unreasonable efforts 

or incur unreasonable expense in mitigating damages. And 

ordinarily, a plaintiff is not required to make expenditures 

to mitigate that are beyond his or her financial means or to 

relocate to another city or state.47 We conclude, as a matter of 

law, that Armstrong did not fail to mitigate her damages by 

not reapplying and enrolling at Clarkson or at another CRNA 

program. Clarkson’s mitigation jury instruction was not warranted by the evidence, and thus, the district court did not err 

in refusing to give that instruction.

(c) Failure to Fulfill Condition Precedent

Clarkson argues that the district court erred in refusing 

to give its proffered jury instruction on failure to fulfill a 

47 See, Hegler v. Board of Ed. of Bearden Sch. Dist., Bearden, Ark., 447 

F.2d 1078, 1081 (8th Cir. 1971) (holding that teacher’s failure to apply 

for out-of-state teaching jobs was not failure to mitigate, because “it 

was not unreasonable for her to refuse to abandon her community and 

move to another state in order to reduce damages caused by the School 

Board’s unlawful acts”); Gerwin v. Southeastern Cal. Assn. of Seventh 

Day Adventists, 14 Cal. App. 3d 209, 219, 92 Cal. Rptr. 111, 117 (1971) 

(“[o]rdinarily a duty to mitigate does not require an injured party to 

take measures which are unreasonable or impractical or which require 

expenditures disproportionate to the loss sought to be avoided or which are 

beyond his financial means”).
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condition precedent. It argues that exhausting its internal 

grievance procedure is a condition precedent to the enforceability of Armstrong’s rights under the contract. We conclude 

that the district court erred in denying Clarkson’s tendered 

jury instruction on Armstrong’s alleged failure to fulfill a 

condition precedent by not exhausting Clarkson’s grievance 

procedure.

While the district court should have instructed the jury on 

the condition precedent issue, Armstrong’s failure to exhaust 

the grievance procedure would be irrelevant if she never 

agreed to the policy. To prevail on this defense, Clarkson 

must prove to a jury that the grievance policy was a term 

of the contract. As discussed above, the student handbooks 

that contain contractual disclaimers or reserve an unrestricted 

power to amend the policies contained therein are not contracts and do not supply the terms of the agreement between 

Clarkson and Armstrong. We are not deciding that the grievance policy was a term of the contract, but only that a jury 

should have been instructed on the issue. On remand, the 

jury will determine whether the grievance policy was a term 

of the contract and whether Armstrong’s failure to grieve is 

excused by any of the exceptions to the exhaustion of remedies requirement.

(i) Clarkson’s Instruction Was 

Correct Statement of Law

[32,33] Armstrong argues that Clarkson’s instruction was not 

a correct statement of law, because the doctrine of exhaustion 

of remedies does not apply to private, nongovernmental entities like Clarkson. This argument is without merit. Under the 

doctrine of exhaustion of administrative remedies, one must 

generally exhaust any available administrative remedies before 

one can seek judicial review.48 The exhaustion requirement 

48 See Vaccaro v. City of Omaha, 6 Neb. App. 410, 573 N.W.2d 798 (1998), 

affirmed 254 Neb. 800, 579 N.W.2d 535.
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has been considered a jurisdictional prerequisite in some cases 

and a condition precedent to filing suit in others.49 This doctrine generally applies to governmental entities.50

[34] But the exhaustion of remedies doctrine also applies 

in many cases to private, nongovernmental entities that provide internal administrative review procedures. Courts have 

required plaintiffs to exhaust their remedies with private entities before seeking judicial review in cases involving mandatory grievance procedures in employee handbooks,51 university 

grievance procedures for reviewing faculty tenure decisions,52

union grievances against employers,53 and intercollegiate athletic association appeals,54 just to name a few. And this court 

has refused to grant equitable relief against a private association if the plaintiff-member has not first exhausted his or 

her remedies within the association.55 We have also held that 

“an individual stockholder must exhaust all means of redress 

49 See Vaccaro v. City of Omaha, supra note 48, 254 Neb. 800, 579 N.W.2d 

535 (1998).

50 See, generally, Vaccaro v. City of Omaha, supra note 48, 6 Neb. App. 410, 

573 N.W.2d 798 (1998).

51 McGuire v. Continental Airlines, Inc., 210 F.3d 1141 (10th Cir. 2000) 

(interpreting Colorado law).

52 Neiman v. Yale University, 270 Conn. 244, 851 A.2d 1165 (2004).

53 Republic Steel v. Maddox, 379 U.S. 650, 85 S. Ct. 614, 13 L. Ed. 2d 580 

(1965).

54 State Board of Ed. v. National Collegiate Ath. Ass’n, 273 So. 2d 912 (La. 

App. 1973). See, also, Oliver v. Natl. Collegiate Athletic Assn., 155 Ohio 

Misc. 2d 1, 920 N.E.2d 190 (2008).

55 Crisler v. Crum, 115 Neb. 375, 213 N.W. 366 (1927). See, also, FHSAA 

v. Melbourne Central Catholic School, 867 So. 2d 1281, 1287-88 (Fla. 

App. 2004) (“[g]enerally, the exhaustion doctrine applies not only to state 

agencies, but also to voluntary associations. . . . Under the common law, 

associations may require their members to exhaust all internal remedies 

within the association before resorting to any court or tribunal outside 

of the association. As a general rule, when a private organization has 

procedures for internal review of its decisions, those procedures must be 

exhausted before seeking redress from a court” (citations omitted)).
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within the corporation before bringing” a stockholder derivative suit.56 In sum, the requirement of exhausting internal 

remedies with a private entity as a prerequisite to bringing 

suit is common throughout the law. Armstrong’s argument 

that the exhaustion requirement does not apply to Clarkson’s 

grievance procedure because it is not a governmental entity 

is unpersuasive.

Three cases on the exhaustion of remedies doctrine are 

instructive here. In McGuire v. Continental Airlines, Inc.,

57

the 10th Circuit Court of Appeals, interpreting Colorado law, 

addressed a breach of contract claim (among other claims) 

by an employee against his private employer, Continental 

Airlines (Continental). At trial, the jury found for the plaintiff on the breach of contract claim. The plaintiff, whose 

employment had been terminated for violation of the company 

absence policy, alleged that his supervisor had miscalculated 

the number of his absences. In Continental’s employee handbook, it provided a four-step internal appeal process to contest employee discipline. The appeal procedure stated, “‘If a 

matter involving the proper application of Company policy 

or disciplinary action (including dismissal) is not resolved to 

the employee’s satisfaction [after discussing the matter with 

the employee’s immediate supervisor], the employee may file 

a formal appeal using Continental’s Appeal Procedure.’”58

The plaintiff did not initiate the final two stages of the 

appeal procedure.

The court began with the legal proposition that “[o]rdinarily, 

an employee must seek to exhaust an employer’s exclusive 

internal grievance process before seeking judicial relief.”59

It then concluded that “Continental’s grievance procedure 

56 Kowalski v. Nebraska-Iowa Packing Co., 160 Neb. 609, 615, 71 N.W.2d 

147, 151 (1955).

57 McGuire v. Continental Airlines, Inc., supra, note 51.

58 Id. at 1143-44.

59 Id. at 1146.
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was the exclusive remedy for challenging a breach of the 

Attendance Policy.”60 It reached this conclusion by reasoning 

that while the policy was expressed in permissive language 

(“‘the employee may file a formal appeal’”61), under Colorado 

law, “[a]ny doubt as to the application of the [grievance] procedure is to be resolved in favor of exclusivity.”62 The court 

held that the plaintiff’s breach of contract claim failed because 

he had failed to exhaust his remedies, and it reversed the 

jury’s verdict.

Another instructive case from the Supreme Court of 

Connecticut is Neiman v. Yale University,

63 which Clarkson 

cites at length in its brief. In that case, a professor sued Yale 

University, a private school, for breach of contract arising from 

its failure to offer her a tenured faculty position. The university faculty handbook contained a grievance procedure, which 

stated that if a faculty member believed that a university policy 

had not been followed or insufficient consideration was given 

for a faculty reappointment or promotion decision, “‘the faculty member may request review of his or her complaint.’”64

The plaintiff did not file a grievance. The trial court dismissed 

the plaintiff’s claim because of her failure to exhaust the grievance procedure.

The court held that the exhaustion requirement applied, 

stating, “We agree with the majority of jurisdictions that 

the exhaustion of remedies doctrine applies to the internal 

grievance processes provided by academic institutions.”65 It 

reasoned that “[t]o allow a plaintiff to sidestep these procedures would undermine the internal grievance procedure that 

the parties had agreed to and encourage other litigants to 

60 Id.

61 Id. at 1143 (emphasis supplied).

62 Id. at 1146.

63 Neiman v. Yale University, supra note 52.

64 Id. at 257, 851 A.2d at 1173 (emphasis in original).

65 Id. at 255, 851 A.2d at 1172.
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ignore the available process as well.”66 It also reasoned that 

with respect to tenure decisions, “academic institutions themselves are best suited to be the original forum for these types 

of disputes.”67

The court also concluded that the grievance procedure, 

in spite of being phrased in permissive language (“‘the faculty member may request review of his or her complaint’”), 

was mandatory.68 The court said that the permissive language 

of the policy meant that “although the plaintiff was not 

compelled to pursue administrative remedies, the language 

meant that the plaintiff had the choice of either forgoing the 

grievance procedure and accepting the decision or using the 

procedure available.”69 The court affirmed the trial court’s 

dismissal.

Another relevant case from the Court of Appeals of New 

Mexico is Lucero v. UNM Bd. of Regents.

70 The plaintiff, who 

worked at the University of New Mexico Health Sciences 

Center, sued his former employer. He brought a breach of contract claim (not a due process claim) based on the termination 

of his employment, which he argued violated the employee 

handbook. The handbook’s grievance procedure stated that if 

an employee could not resolve an issue with his or her immediate supervisor, the employee “‘may submit a grievance in 

writing to the immediate supervisor or Administrator.’”71 The 

plaintiff did not file a grievance. The trial court held a bench 

trial and entered judgment in favor of the plaintiff.

The court reversed the trial court’s judgment because the 

plaintiff had failed to file a grievance. It stated that “an 

employee must exhaust grievance procedures in an employee 

66 Id.

67 Id.

68 Id. at 257, 851 A.2d at 1173 (emphasis in original).

69 Id. at 257-58, 851 A.2d at 1173.

70 Lucero v. UNM Bd. of Regents, 2012 NMCA 055, 278 P.3d 1043 (2012).

71 Id. at ¶ 2, 278 P.3d at 1044.
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handbook or manual before filing claims against the employer 

for breach of contract.”72 The court noted that “[c]ourts from 

other jurisdictions have uniformly applied the same rule, 

regardless of whether the employer is a public entity or a private entity.”73

[35] What these cases illustrate is that where an employer 

or university provides a mandatory grievance procedure in a 

contract, the enforceability of a party’s rights under the contract is conditioned on the exercise of that grievance procedure. 

Several rationales underlie the requirement of exhaustion of 

remedies in these and other similar cases. These rationales are 

not limited to the employment context, but apply with equal 

force to the internal procedures of colleges and universities.

First, the exhaustion requirement is important because it 

allows the private entity—whether an employer, labor union, 

private association, or university—“to redress wrongs without 

burdening the courts with unnecessary litigation.”74 Courts 

need not and should not be in the business of addressing 

internal issues within a private organization before the decisionmaking process has had the opportunity to run its course 

and become final. Here, Clarkson’s grievance committee, 

composed of outside individuals in the college without any 

conflicts of interest, may well have decided that Armstrong 

should not have been disciplined, that she should have been 

given more time to complete the program, and that she 

should not have been administratively withdrawn, or could 

have made some other decision favorable to her. By allowing 

Clarkson’s decisionmaking process to run its full course, the 

need for judicial intervention may well have been obviated. 

Not only does the exhaustion requirement give the school 

the opportunity to correct its own potential mistakes through 

its grievance procedure, but it conserves valuable and scarce 

72 Id. at ¶ 10, 278 P.3d at 1045.

73 Id. at ¶ 12, 278 P.3d at 1046.

74 Id. at ¶ 13, 278 P.3d at 1046.
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judicial resources by preventing unnecessary litigation in 

some cases.

Related to the policy of conservation of judicial resources, 

the exhaustion requirement serves to build a record if later 

judicial proceedings do ensue and to clarify the parties’ arguments and sharpen the focus on the relevant evidence.75 By 

attempting to resolve the issues internally, the scope of the 

dispute may be narrowed, making resolution easier for later 

judicial proceedings.

[36] Finally, failing to treat mandatory grievance procedures as a condition precedent would effectively make them 

optional. It would undermine an organization’s ability to create 

by contract a single forum to resolve all of its internal disputes. 

And as one court reasoned, mandatory grievance procedures 

must be exhausted before seeking judicial review, because the 

grievance procedure “is part of the contractual bargain and 

defines the rights themselves.”76

[37] The exhaustion of a mandatory grievance procedure 

in a contract is a condition precedent to enforcing the rights 

under that contract.77 Because Armstrong’s argument that the 

exhaustion requirement does not apply to private entities is 

without merit, we disagree that Clarkson’s instruction was an 

incorrect statement of law.

Armstrong also argues that Clarkson’s instruction is not a 

correct statement of law because the grievance policy does not 

expressly state that it is a condition precedent to the enforceability of Clarkson’s duties under the contract. But the exhaustion of a mandatory grievance procedure in a contract is a condition precedent to enforcing the rights under that contract.78

75 Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73 (N.D. 1991).

76 Berkowitz v. President & Fellows of Harvard, 58 Mass. App. 262, 275, 

789 N.E.2d 575, 585 (2003).

77 See, McGuire v. Continental Airlines, Inc., supra note 51; Lucero v. UNM 

Bd. of Regents, supra note 70; Neiman v. Yale University, supra note 52.

78 Id.
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The grievance procedure does not need to expressly state that 

it is a condition precedent.79 The fact that the instruction refers 

to an implied duty to exhaust the grievance procedure does not 

mean that it is an incorrect statement of law.

(ii) Clarkson’s Instruction Was 

Warranted by Evidence

Clarkson’s instruction was not only a correct statement of 

law, but it was warranted by the facts. Clarkson presented 

evidence that it provided a copy of the grievance policy and 

the grievance form to Armstrong when she was placed on probation. And the grievance procedure was mentioned in some 

of the student handbooks distributed to Armstrong. Clarkson 

presented evidence that Armstrong was aware of the policy. 

There was sufficient evidence to create a factual issue for the 

jury regarding whether the grievance policy was a term of the 

contract between Clarkson and Armstrong.

And Clarkson’s grievance policy was clearly intended to 

be mandatory. The policy explains how a student may file a 

grievance and states that “[t]he Grievance Committee is the 

designated arbiter of disputes within the student community in 

cases, which do not involve a violation of the Student Code of 

Conduct . . .” and that the committee’s decisions are final. This 

language is not unlike the language of the grievance policies 

found to be mandatory in the cases discussed above.80 We do 

not presume that Clarkson intended its grievance procedure to 

be optional.

But in deciding that Clarkson’s jury instruction was warranted by the evidence, we make no comment on whether any 

79 Id. See, also, Sylvain v. Spaulding Rehabilitation Hosp. Corp., No. 

15-5475-D, 2016 WL 1125940 at *10 (Mass. Super. Mar. 23, 2016) 

(unpublished decision) (“the law does not require that internal grievance 

procedure exhaustion be compelled in express terms as a condition for 

making later contract claims in court”).

80 See, McGuire v. Continental Airlines, Inc., supra note 51; Lucero v. UNM 

Bd. of Regents, supra note 70; Neiman v. Yale University, supra note 52.
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of the exceptions to the exhaustion requirement, such as futility or inadequacy of the remedy, apply in this case.81 While 

Armstrong could have filed a grievance to appeal the decision 

to place her on probation, it is not clear whether she could 

have filed a grievance to appeal the decision to withdraw her 

from the program after she was administratively withdrawn 

and was no longer a student. At trial, Armstrong testified that 

she believed she was not able to file a grievance after she had 

been withdrawn from the program. On its face, the grievance 

policy does not state whether a former student may file a 

grievance to dispute a dismissal or administrative withdrawal 

after the dismissal or withdrawal when the former student is 

no longer enrolled at the college. This argument about whether 

the grievance policy was available to Armstrong—and thus 

whether it was an adequate remedy that she was required to 

exhaust—is best addressed by a jury that has been instructed 

on the issue.

We also do not address whether Clarkson is estopped from 

arguing that Armstrong failed to fulfill a condition precedent based on her failure to file a grievance because of the 

statement made to her by Damewood, the vice president of 

operations, regarding her behavior’s constituting a Code of 

Conduct violation—to which the grievance policy does not 

apply. Nor do we address whether Armstrong’s failure to 

use the grievance policy is excused by the doctrine of prevention.82 These are factual questions for the jury to decide 

on remand.

While Armstrong may argue to the jury that Damewood’s 

statement excused her from exhausting Clarkson’s grievance 

procedure, this does not mean that Clarkson’s instruction was 

not warranted by the evidence. Armstrong argues that the 

81 See, e.g., Vaccaro v. City of Omaha, supra note 48, 6 Neb. App. 410, 

573 N.W.2d 798 (1998) (there are exceptions to exhaustion doctrine’s 

application); 2 Am. Jur. 2d Administrative Law § 454 (2014).

82 See, D & S Realty v. Markel Ins. Co., supra note 38; Fast Ball Sports v. 

Metropolitan Entertainment, supra note 16.
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grievance policy is inapplicable, because it expressly does not 

apply to Code of Conduct violations. But Armstrong was not 

disciplined for violating the Code of Conduct. Armstrong was 

disciplined for violating the CRNA program handbook and the 

AANA Code of Ethics.

Armstrong’s argument that the grievance policy did not 

apply to her is based on one issue: At the initial meeting on 

April 23, 2013, Damewood told Armstrong that her conduct 

violated the Code of Conduct.

To bring charges for a Code of Conduct violation, a member 

of the college community must prepare written charges and 

present them to the judicial advisor, Damewood. The written 

charges must then be presented to the accused student in writing. No written charges of violating the Code of Conduct were 

ever filed by anyone with Damewood, nor were any written 

charges ever presented to Armstrong. Outside of Damewood’s 

statement at the first meeting, there is no evidence that the 

Code of Conduct was discussed. In the second meeting, at 

which Armstrong was given the formal notification that she 

was being placed on probation, Armstrong was told that she 

was being placed on probation for violating the CRNA program handbook’s professionalism rule and the AANA Code 

of Ethics. At trial, when discussing the outline of the April 

24 meeting at which she was placed on probation, Armstrong 

admitted that the basis for her probation was violation of the 

CRNA program handbook and the AANA Code of Ethics, not 

the Code of Conduct.

Armstrong’s argument that the grievance procedure was 

inapplicable because it does not apply to Code of Conduct 

violations is without merit, because she was never charged 

with a violation of the Code of Conduct. Damewood’s incorrect statement that Armstrong had violated the Code of 

Conduct may be relevant to an estoppel argument—made 

to a jury properly instructed on the exhaustion issue—but 

it does not mean that the instruction was not warranted by 

the evidence.
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(iii) Clarkson Was Prejudiced by Court’s 

Failure to Give Requested Instruction

Finally, we conclude that the district court’s refusal to give 

Clarkson’s proffered jury instruction on Armstrong’s failure 

to fulfill a condition precedent by not filing a grievance was 

prejudicial to Clarkson. Armstrong argues that there was no 

prejudice to Clarkson, because the substance of the proposed 

instruction was covered by the court’s instruction to the jury 

that Armstrong bore the burden of proving that she “substantially performed her part of the contract.” But whether a condition precedent was met is not the same question as whether 

a party substantially performed a contract. As a condition 

precedent, using the grievance procedure would be necessary to trigger the enforceability of Clarkson’s duties under 

the contract, but if using the grievance were merely one of 

Armstrong’s many duties under the contract, then the jury may 

determine that she substantially performed her duties under 

the contract in spite of not filing a grievance. Armstrong’s 

argument that the condition precedent instruction was covered 

in substance by the substantial performance instruction is 

legally incorrect. No other jury instruction adequately covered 

the issue of Armstrong’s failure to fulfill a condition precedent 

by not filing a grievance.

Because Clarkson’s tendered jury instruction was a correct statement of law and was warranted by the evidence, 

and because the failure to give this instruction was prejudicial to Clarkson, the district court erred in refusing to give 

Clarkson’s instruction. We reverse the judgment of the district 

court and remand the cause for a new trial in accordance with 

this opinion.

4. Denial of Clarkson’s Motion

Aside Verdict or for New

Clarkson’s motion to set aside verdict or motion for new 

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failing to instruct the jury on the issue of Armstrong’s alleged 

failure to fulfill a condition precedent by not exhausting 

Clarkson’s grievance procedure, we conclude that the district 

court abused its discretion by denying Clarkson’s motion for 

new trial.

VI. CONCLUSION

For the reasons set forth in this opinion, we reverse the 

judgment of the district court and remand the cause for a new 

trial in accordance with this opinion.

Reversed and remanded for a new