LaForge v. State, University System

• Citation: 997 P.2d 130,116 Nev. 415
• Decision Date: 05 April 2000
• Docket Number: No. 33397., No. 32814
• Parties: Laurence E. LAFORGE, Appellant, v. The STATE of Nevada, as the UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; University of Nevada, Reno; and Board of Regents of the University and Community College System of Nevada, Respondents (Two Cases).
• Court: Supreme Court of Nevada

997 P.2d 130

116 Nev. 415

Laurence E. LAFORGE, Appellant, v. The STATE of Nevada, as the UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA; University of Nevada, Reno; and Board of Regents of the University and Community College System of Nevada, Respondents (Two Cases).

Nos. 32814, 33397.

Supreme Court of Nevada.

April 5, 2000.

Paul G. Yohey, Reno, for Appellant.

Mary Phelps Dugan, Reno, for Respondents.

Before YOUNG, AGOSTI and LEAVITT, JJ.

OPINION

PER CURIAM:

Appellant was a nontenured professor at the University of Nevada, Reno, when he received 369 days' notice that his yearly contract would not be renewed. Appellant brought suit over the termination of his employment in federal and state courts. After the federal action was dismissed, respondents moved for summary judgment in state court on the basis of issue preclusion. The state district court granted the motion, concluding that issue preclusion prevented appellant from pursuing his claims in state court. The state court also granted respondents' motion for attorney's fees and costs incurred from the date appellant rejected respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees. We conclude that the district court properly relied on issue preclusion in granting summary judgment and did not abuse its discretion in awarding attorney's fees.

FACTS

Appellant's employment with the University of Nevada, Reno, began on or about July 15, 1993, when he began working as a part-time professor. On July 1, 1994, appellant became employed at the university in a full-time, nontenured position. On June 27, 1995, appellant was presented by a supervisor with a notice of non-reappointment to employment and a terminal contract. On June 30, 1996, 369 days later, appellant's employment at the university ended.

Appellant's contract incorporated as part of its terms the University and Community College System of Nevada Code (hereafter "Code").¹ Code section 5.9.1 provides that "[notice] of non[-]reappointment to employment of nontenured faculty at the University of Nevada, Reno ... shall be given ... [a]t least 365 calendar days in advance of the termination of each succeeding employment contract of an academic or fiscal year's duration after the second year of service." Code section 5.7.2 states that "[a]ny decision which involves the non[-]reappointment to employment of faculty as provided in Subsections 5.4.2, 5.8.2, 5.9.1 and 5.9.2 of the [Code] ... is not subject to review by grievance procedures."

After termination of his employment with the university, appellant filed lawsuits against respondents in federal and state courts. The federal action included three causes of action: deprivation of constitutionally protected liberty or property interests without due process of law; conspiracy to deprive constitutionally protected liberty or property interests without due process of law; and a pendent state law claim alleging that respondents ignored his evaluations, failed to give him a grievance procedure and denied him the benefits of his employment. The state action included three causes of action: breach of contract, breach of covenant of good faith and fair dealing, and negligent supervision.

The federal court dismissed the federal action, concluding that respondents were not obligated to provide anything other than the written notice they provided to appellant, that respondents were under no obligation to renew appellant's contract, and that respondents were under no duty to heed appellant's evaluations or give him a grievance procedure. Approximately one year after dismissal of the federal action, respondents filed a motion for summary judgment in the state action. The state court granted the motion, concluding that issue preclusion prevented appellant from pursuing his claims in state court. The district court also granted respondents' motion for attorney's fees and costs incurred since the time appellant rejected respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees.

DISCUSSION

I. Summary Judgment

"[A]n order granting summary judgment is reviewed de novo." Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 834, 963 P.2d 465, 473 (1998) (citing Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989)).

Issue preclusion, or collateral estoppel,² is a proper basis for granting summary judgment. See Paradise Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973). In Executive Management, we clarified the three-part test for issue preclusion as follows:

"(1) the issue decided in the prior litigation must be identical to the issue presented in the current action; (2) the initial ruling must have been on the merits and have become final; and (3) the party against whom the judgment is asserted must have been a party in privity with a party to the prior litigation." ... [W]e hereafter construe this language as stating the applicable test for issue preclusion, rather than for res judicata which encompasses the rule of claim preclusion.

Executive Management, 114 Nev. at 835-36, 963 P.2d at 473-74 (quoting University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994)) (citing Bernhard v. Bank of America National Trust and Savings Ass'n, 19 Cal.2d 807, 122 P.2d 892 (1942)). "`"The general rule of issue preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties."'" Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191) (quoting Charles A. Wright, Law of Federal Courts § 100A, at 682 (4th ed.1983)). "`The doctrine provides that any issue that was actually and necessarily litigated in [case I] will be estopped from being relitigated in [case II].'" Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191). "Unlike claim preclusion, issue preclusion `does not apply to matters which could have been litigated but were not.'" Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396, 399 (1974)) (footnote omitted).

Appellant contends that issue preclusion does not apply to his state action because the issues in the federal case were not identical to the issues in his state action. Specifically, appellant contends that an issue from his state action, breach of employment contract by failure to follow personnel procedures contained in the Code and university and departmental bylaws (hereafter "Bylaws"), is not identical to the issue in the federal action of whether the Code and Bylaws created a protected property interest. Appellant concedes that the two issues may have overlapping analysis, but asserts that the issues are nevertheless not identical and therefore issue preclusion cannot apply.

We conclude that appellant's contention lacks merit. Issue preclusion may apply "even though the causes of action are substantially different, if the same fact issue is presented." Clark v. Clark, 80 Nev. 52, 56, 389 P.2d 69, 71 (1964). The district court correctly applied the doctrine of issue preclusion based on appellant's own concession that identical facts supported both the federal and state actions. Appellant again concedes on appeal that identical facts supported the federal and state actions. We note, as do respondents, that appellant uses the same arguments in this appeal as he used in response to the motion to dismiss the federal case.³ Based on our review of the record, we conclude that, in essence, the common issue in both the federal and state actions is whether respondents, in terminating appellant's employment, were obligated to do anything else in addition to what they did. Because this common issue "`"was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties."'" Executive Management, 114 Nev. at 835, 963 P.2d at 473 (citations omitted). The federal court's minute order makes it clear that the federal court made a determination on that common issue.⁴ The minute order stated as follows:

We have found nothing in the case law, the Nevada Revised Statutes, the University Code, or the University By-Laws [sic] providing an untenured faculty member anything other than written notice before termination.... [Respondents] were under no obligation whatsoever to renew [appellant's] contract, made no promises to renew it, and could decide not to renew it even for petty and malicious reasons.

....

... But [Respondents] were under no duty to heed his evaluations (for purposes of determining whether to renew his contract) or to give him a grievance procedure.

Because the common issue of whether respondents did what they were obligated to do had already been litigated and determined in a final judgment of the federal court, we conclude that the district court did not err in granting summary judgment on the grounds of issue preclusion.

We note also that we agree with respondents' alternative contention that summary judgment could have been appropriately granted on the grounds that no genuine issue of material fact remained as to both the breach of contract claim and the breach of the covenant of good faith and fair dealing claim. Respondents contend that there were no disputed facts material to either claim: appellant conceded that he was nontenured, that the Code was made a part of his employment contract, and that he received notice of non-reappointment 369 days prior to his termination. We agree that the district court could have concluded as a matter of law, based on reading the plain language of the contract, which mentions the Code but makes no mention of the Bylaws, that the Code was incorporated into the terms of the contract but the Bylaws were not.⁵ Because...