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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

Dr. Robert McEwen, appellant, v. Nebraska 

State College System, appellee.

___ N.W.2d ___

Filed December 17, 2019. No. A-17-638.

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

reviews questions of law decided by a lower court.

2. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law.

3. ____. In interpreting a contract, a court must first determine, as a matter 

of law, whether the contract is ambiguous.

4. Contracts: Words and Phrases. A contract is ambiguous when a word, 

phrase, or provision in the contract has, or is susceptible of, at least two 

reasonable but conflicting interpretations or meanings.

5. Contracts. When the terms of a contract are clear, a court may not 

resort to rules of construction, and the terms are to be accorded their 

plain and ordinary meaning as an ordinary or reasonable person would 

understand them.

6. ____. The fact that the parties have suggested opposing meanings of a 

disputed instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.

7. ____. A contract must receive a reasonable construction, and a court 

must construe it as a whole and, if possible, give effect to every part of 

the contract.

8. ____. Whatever the construction of a particular clause of a contract, 

standing alone, may be, it must be read in connection with other 

clauses.

9. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Dawes County: Derek C. 

Weimer, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

12/31/2019 09:06 AM CST
- 897 -

Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

Howard P. Olsen, Jr., and Adam A. Hoesing, of Simmons 

Olsen Law Firm, P.C., for appellant.

George E. Martin III and Leigh Campbell Joyce, of Baird 

Holm, L.L.P., for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge.

INTRODUCTION

Dr. Robert McEwen appeals the decision of the district 

court for Dawes County which overruled his petition in error 

challenging the termination of his employment. On appeal, 

he alleges that the court’s decision was erroneous because 

the Nebraska State College System (NSCS) failed to comply 

with a contractually required provision prior to terminating his 

employment. Finding no merit to this argument, we affirm.

BACKGROUND

McEwen was a tenured professor at Chadron State College 

(CSC). He and NSCS were members of the State College 

Education Association, which was a party to a collective 

bargaining agreement (the CBA) effective from July 1, 2015, 

through June 30, 2017. Under the CBA, faculty members, 

tenured and nontenured, may be dismissed for just cause. 

Section 17.3 of the CBA provided, “Prior to giving a faculty member notice of a recommendation for dismissal, the 

Dean shall meet privately and discuss the recommendation 

with the faculty member. The matter may be reconciled by 

mutual consent.”

In the fall of 2015, one of McEwen’s students filed a formal complaint against McEwen with CSC’s administration 

alleging discrimination. The associate vice president of human 

resources at CSC, Anne DeMersseman, began an investigation into the complaint. In October, Dr. Charles Snare, the 

vice president for academic affairs at CSC, and Dr. James 

Margetts, a dean at CSC who oversaw McEwen, authored a 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

letter to McEwen outlining the concerns raised in the complaint and subsequent investigation. A meeting concerning 

the complaint was held on October 30, and McEwen, Snare, 

Margetts, and DeMersseman attended, as well as an auditor 

for McEwen due to his hearing difficulties. Snare, Margetts, 

and DeMersseman discussed the matter after the meeting and 

decided to recommend dismissal of McEwen.

A second meeting was held on November 10, 2015. 

McEwen, Snare, and Margetts attended the meeting, which 

was held in Margetts’ office. Margetts requested Snare’s presence as a witness, but Snare did not speak at all during the 

meeting. Margetts informed McEwen that he was recommending McEwen’s dismissal and offered him the opportunity to 

resign rather than be subject to dismissal. Upon the advice of 

his union representative, McEwen declined to comment, and at 

the end of the meeting, which lasted approximately 5 minutes, 

Margetts provided McEwen a copy of the letter recommending 

his dismissal.

Subsequently, the president of CSC sent written notice of the 

recommendation to McEwen. Pursuant to procedure set forth 

by the CBA, McEwen requested a hearing before an advisory 

committee. Prior to the hearing, McEwen filed a motion for 

reinstatement and dismissal of recommendation of dismissal. 

The motion alleged, in part, that CSC had not complied with 

the requirements of section 17.3 of the CBA. The advisory 

committee denied the motion. The audio-recorded hearing took 

place in February 2016; evidence was presented, witnesses 

testified, and the recording was transcribed. At the conclusion 

of the hearing, McEwen renewed his motion. The motion was 

again denied. The advisory committee unanimously found that 

just cause for McEwen’s dismissal existed and recommended 

the termination of his employment.

The president of CSC sent to McEwen a written letter dated March 16, 2016, in which he affirmed the findings and recommendations of the advisory committee and 

discharged McEwen’s employment. McEwen then made a 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

written request to NSCS’ chancellor requesting a hearing 

before NSCS’ board of trustees. In a response letter, the chancellor denied McEwen’s request for a hearing, thereby finalizing the discharge.

On May 17, 2016, McEwen filed a petition in error in the 

district court. He alleged that he had been wrongfully terminated from his position as a tenured professor at CSC. As relevant to this appeal, he asserted that NSCS failed to follow the 

procedure set forth in section 17.3 of the CBA. Specifically, 

he claimed that section 17.3 mandated a “private” meeting 

between McEwen and Margetts and that because Snare was 

also present at the November 10, 2015, meeting, it did not satisfy section 17.3’s requirements.

The district court disagreed, finding that the November 10, 

2015, meeting satisfied the requirements of section 17.3. The 

court found that the term “private” required some restriction 

to participation in and observance of the occurrence, and it 

found that that standard was satisfied when the November 

10 meeting took place in a private office, behind “‘closed 

doors,’” and with no verbatim record kept. The court erroneously found that an auditor for McEwen was present at the 

meeting in addition to McEwen, Snare, and Margetts, but 

noted that neither the auditor nor Snare actively participated 

in the meeting. The court therefore overruled McEwen’s petition in error.

McEwen filed a motion for new trial or, in the alternative, an order to vacate the judgment. In its order denying the 

motion, the district court recognized that it had made a factual 

error in its prior order in that an auditor was not present at the 

November 10, 2015, meeting. However, the court concluded 

that this factual error did not mandate a vacation of its previous order; thus, it denied McEwen’s motion to vacate. The 

motion for new trial was also denied.

McEwen then filed a notice of appeal. This court summarily dismissed the appeal for lack of jurisdiction, finding that 

McEwen’s motion for new trial did not toll the time to file 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

a notice of appeal and that McEwen’s notice of appeal was 

not timely filed. On petition for further review, the Nebraska 

Supreme Court, overruling prior precedent, determined that 

Neb. Rev. Stat. § 25-1329 (Reissue 2016) applies to a judgment of a district court acting as an intermediate appellate 

court. See McEwen v. Nebraska State College Sys., 303 Neb. 

552, 931 N.W.2d 120 (2019). Consequently, it concluded that 

McEwen’s alternative motion to vacate qualified as a motion to 

alter or amend a judgment; therefore, his notice of appeal was 

timely. Id. Accordingly, the Supreme Court reversed the summary dismissal of the appeal and remanded the cause to this 

court for further proceedings. Id. We now proceed to address 

the merits of the appeal.

ASSIGNMENT OF ERROR

McEwen assigns, consolidated and restated, that the district 

court erred in overruling his petition in error because NSCS 

failed to meet the requirements of section 17.3 of the CBA.

STANDARD OF REVIEW

[1,2] We independently review questions of law decided by 

a lower court. Timberlake v. Douglas County, 291 Neb. 387, 

865 N.W.2d 788 (2015). The interpretation of a contract and 

whether the contract is ambiguous are questions of law. Id.

ANALYSIS

McEwen alleges that NSCS failed to follow section 17.3 of 

the CBA, which requires that the Dean “meet privately” with 

him to discuss the recommendation for dismissal. McEwen 

argues that the term “privately” mandates a “one-on-one” 

meeting between him and Margetts and that he never received 

his private meeting prior to his dismissal, because Snare was 

present at the November 10, 2015, meeting. See brief for 

appellant at 22. NSCS claims that McEwen’s definition of the 

term “privately” is too narrow and that rather than limiting 

the number of attendants at the meeting, the term requires a 

“‘non-public’” or “‘off-the-record’” meeting. See brief for 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

appellee at 13. Thus, the issue before us is the meaning of the 

term “privately” as used in section 17.3.

[3-6] In interpreting a contract, a court must first determine, 

as a matter of law, whether the contract is ambiguous. Gibbons 

Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808 (2015). 

A contract is ambiguous when a word, phrase, or provision 

in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. Id. When the 

terms of a contract are clear, a court may not resort to rules of 

construction, and the terms are to be accorded their plain and 

ordinary meaning as an ordinary or reasonable person would 

understand them. Id. The fact that the parties have suggested 

opposing meanings of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. Id.

Although the parties have suggested conflicting interpretations in the present case, neither party suggests that the contract is ambiguous, and we find that it is not. As such, we give 

the term “privately” its plain and ordinary meaning.

The Supreme Court has often turned to dictionaries to 

ascertain a word’s plain and ordinary meaning. See State v. 

Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016). See, also, Stick 

v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); 

Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 

779, 844 N.W.2d 755 (2014); Mathews v. Mathews, 267 Neb. 

604, 676 N.W.2d 42 (2004); Payless Bldg. Ctr. v. Wilmoth, 254 

Neb. 998, 581 N.W.2d 420 (1998). The American Heritage 

Dictionary of the English Language 1396 (4th ed. 2000) 

defines “private” as “[s]ecluded from the sight, presence, or 

intrusion of others”; “[n]ot available for public use, control, 

or participation”; “[n]ot for public knowledge or disclosure; 

secret”; and “[n]ot appropriate for use or display in public; 

intimate.” Similarly, Black’s Law Dictionary 1448 (11th ed. 

2019) defines “private” as “[o]f, relating to, or involving an 

individual, as opposed to the public or the government” and 

“[c]onfidential; secret.”
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

When considering these definitions, we conclude that the 

term “privately” as used in section 17.3 is defined more 

broadly as NSCS suggests. Rather than allowing only two participants, the term means that the meeting is not public. This 

interpretation of the term is supported when considering the 

remainder of the CBA.

[7,8] A contract must receive a reasonable construction, and 

a court must construe it as a whole and, if possible, give effect 

to every part of the contract. Labenz v. Labenz, 291 Neb. 455, 

866 N.W.2d 88 (2015). Whatever the construction of a particular clause of a contract, standing alone, may be, it must be read 

in connection with other clauses. Id.

When reading section 17.3 with the sections that follow, we 

understand that by requiring the dean to meet “privately” with 

the faculty member, it allows the attendants of the meeting to 

discuss a personnel matter in confidence and attempt an amicable resolution. If they are unable to resolve the matter, the 

faculty member is given written notice of the recommendation 

for dismissal. According to the CBA, the faculty member may 

then request a hearing before an advisory committee, where 

evidence is presented and witnesses testify, and the hearing 

may be transcribed by a court reporter upon request by any 

party. Thus, when considering additional sections of the CBA, 

rather than requiring a one-on-one meeting between the dean 

and the faculty member, we interpret the private nature of the 

section 17.3 meeting to stand in contrast to the more public 

nature of the hearing before the advisory committee, giving the 

faculty member the chance to resolve the matter behind closed 

doors first before it is addressed to a committee and in front 

of witnesses.

When considering this definition, we conclude that the 

November 10, 2015, meeting satisfied the requirements of 

section 17.3. The meeting was held in Margetts’ office, and 

there was no verbatim record kept of the meeting. Snare 

attended as a witness but did not say anything during the meeting. Margetts informed McEwen that he was recommending 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

McEWEN v. NEBRASKA STATE COLLEGE SYS.

Cite as 27 Neb. App. 896

dismissal and offered him the opportunity to resign rather than 

be subject to dismissal. Upon the advice of his union representative, McEwen declined to comment. The meeting lasted 

approximately 5 minutes, and at the conclusion, Margetts gave 

McEwen a copy of the letter recommending his dismissal. 

Thus, the meeting was held in private and off the record, 

and it was attended by just three people, only two of whom 

participated. In addition, the meeting allowed McEwen the 

opportunity to reconcile the matter by mutual consent should 

he have chosen to do so. Accordingly, the district court properly concluded that NSCS complied with the requirements of 

section 17.3, and thus, the court did not err in overruling the 

petition in error on that basis.

[9] McEwen raises two additional arguments on appeal. He 

first asserts that section 17.3 is a substantive rule, as opposed 

to a procedural rule, and argues that because NSCS failed to 

follow the requirements of this section, its actions are arbitrary 

and capricious and subject to reversal. In addition, and in the 

alternative to the preceding argument, he claims that section 

17.3 imposed a contractual duty that NSCS was required to 

follow before it could exercise termination rights under the 

CBA. Both of these arguments, however, are premised on a 

finding that a section 17.3 private meeting was never held. 

Because we have concluded that McEwen was afforded his 

rights under section 17.3, we need not address his additional 

arguments. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it. Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 

899 N.W.2d 905 (2017).

CONCLUSION

We conclude that the requirements of section 17.3 of the 

CBA were satisfied in this case and that therefore, the district 

court did not err in overruling McEwen’s petition in error. We 

therefore affirm.

Affirmed.