{ "id": 5330569, "name": "Richard K. HILLIS, Plaintiff-Appellee, v. Charles W. MEISTER, President of Eastern New Mexico University et al., Defendants-Appellants", "name_abbreviation": "Hillis v. Meister", "decision_date": "1971-04-02", "docket_number": "No. 622", "first_page": "474", "last_page": "478", "citations": [ { "type": "official", "cite": "82 N.M. 474" }, { "type": "parallel", "cite": "483 P.2d 1314" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "78 N.M. 101", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321625 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0101-01" ] }, { "cite": "79 N.M. 29", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2741932 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0029-01" ] }, { "cite": "311 N.Y.S.2d 313", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1970, "opinion_index": 0 }, { "cite": "63 Misc.2d 186", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1218871 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/misc2d/63/0186-01" ] }, { "cite": "426 F.2d 492", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2247170 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/426/0492-01" ] }, { "cite": "412 F.2d 1128", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2187432 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/412/1128-01" ] }, { "cite": "134 U.S.App.D.C. 81", "category": "reporters:state", "reporter": "U.S. App. D.C.", "year": 1969, "opinion_index": 0 }, { "cite": "76 N.M. 703", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504575 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0703-01" ] }, { "cite": "77 N.M. 217", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803878 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0217-01" ] }, { "cite": "69 N. M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2790295 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0346-01" ] }, { "cite": "69 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787029 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/69/0336-01" ] }, { "cite": "430 F.2d 852", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2232089 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/430/0852-01" ] } ], "analysis": { "cardinality": 603, "char_count": 12636, "ocr_confidence": 0.715, "pagerank": { "raw": 2.79882875163204e-07, "percentile": 0.8366680837377005 }, "sha256": "cf813b75c25944f34c6d775605ad0510825ddcd611aec726ecb01fff362cfc54", "simhash": "1:9b91d8e33e91cf0f", "word_count": 2009 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and SUTIN, JJ., concur." ], "parties": [ "Richard K. HILLIS, Plaintiff-Appellee, v. Charles W. MEISTER, President of Eastern New Mexico University et al., Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nPlaintiff\u2019s suit, involving his teaching contract at Eastern New Mexico University, named various defendants. Although all of the named defendants gave notice of appeal, no judgment was entered against any of the defendants except the Board of Regents. The trial court directed a verdict in favor of plaintiff and against the Regents. The Regents\u2019 appeal raises several issues, only two of which require discussion. These are: (1) whether the faculty handbook was a part of plaintiff\u2019s contract with the University and (2) the award of costs.\nWhether the handbook was a part of plaintiff\u2019s contract.\nAt the time plaintiff was hired as an assistant professor of art, a faculty handbook had existed for a number of years. Revisions in the handbook was submitted to and approved by the Regents.\nThe handbook pertained to various aspects of the relationship between the University and its employees. One aspect was the continuance of the services of faculty members \u2014 such as plaintiff \u2014 in their first year of service. Procedures were set forth in the handbook concerning the treatment of a first year faculty member who was not to be reappointed. The procedure covered both the time and the manner of treatment. These procedures were not followed in plaintiff\u2019s case. The evidence is undisputed that in other cases where the procedures were not followed, the person involved had been reappointed to his position. Thus, the uncontradicted evidence is that, under the handbook and the actual .practices of the University, plaintiff had an \u201cexpectation of reemployment.\u201d Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).\nPlaintiff\u2019s written contract with the Regents of the University was for the academic year 1967-68. This contract makes no express reference to the handbook. The contract required plaintiff to \u201c * * * observe and abide by any and all rules, regulations, and directives adopted by the University. * * * \u201d The contract neither identifies these rules, regulations and directives nor indicates where they may be found. Further, the contract makes no reference to the status of plaintiff, in relation to the University, at the end of the time period covered by the contract.\nIf we consider the contract reference to rules and regulations as rules and regulations applying to the University as well as to the plaintiff, then the contract is ambiguous because such rules and regulations are not identified from the contract itself. In such a case, the construction placed on the contract by the parties would be controlling. Jernigan v. New Amsterdam Casualty Company, 69 N.M. 336, 367 P.2d 519 (1961); see Cochran v. Gordon, 69 N. M. 346, 367 P.2d 526 (1961).\nIf, however, we consider the contract simply not to cover either the handbook or plaintiff\u2019s status with the University at the end of the contract term, we have a .situation where a \u201c * * * course of conduct may give rise to a contract implied in fact, * * *\u201d Gordon v. New Mexico Title Company, 77 N.M. 217, 421 P.2d 433 (1966); see Trujillo v. Chavez, 76 N.M. 703, 417 P.2d 893 (1966).\nUnder either of the two foregoing approaches, the conduct of the parties may define the terms of their contract. Compare \u00a7 50A-1-205, N.M.S.A.1953 (Repl. Vol. 8, pt. 2).\nHere, the undisputed evidence shows the handbook was treated as controlling the relationship between the plaintiff and the University. This evidence goes to the time when plaintiff entered the contract and to the time when differences between plaintiff and the administration had come to light. At a meeting between a grievance committee and the administration, \u201cboth parties\u201d referred to the handbook. This evidence also goes to the time when the administration was proceeding to do without plaintiff\u2019s services. A faculty committee was appointed but that committee decided it could not undertake the task it was given to do because the committee was not constituted in accordance with the handbook. The administration then undertook to \u201cdismiss\u201d (rather than to nonreappoint) plaintiff in accordance with handbook procedures. The president of the University characterized the handbook as \u201cthe most important single document\u201d governing the relationship between the faculty members and the University administration. The president also testified that the handbook contained some of the terms of employment \u201c * * * with respect to academic freedom and tenure and continuance and termination.\u201d\nA case very similar to this one is Greene v. Howard University, 134 U.S.App.D.C. 81, 412 F.2d 1128 (1969). There it is stated:\n\u201c * * * Contracts are written, and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is.\n\u201cThe employment contracts of appellants here comprehend as essential parts of themselves the hiring policies and practices of the University as embodied in its employment regulations and customs. * * * \u201d\nFerguson v. Thomas, supra; compare Smith v. Board of Regents, State Senior Colleges, 426 F.2d 492 (5th Cir. 1970); Silver v. Queens College of City University, 63 Misc.2d 186, 311 N.Y.S.2d 313 (1970).\nThe Regents do not claim there is any dispute in the evidence as to the \u201ccourse of conduct\u201d between the plaintiff and the University administration which applied the handbook to plaintiff\u2019s contract. The Regents contend, however, that this course of conduct does not apply to them as the body that contracted with plaintiff. Specifically, they seek a distinction between the Regents and the University administration. This asserted distinction has no factual basis in this case.\nThe uncontradicted testimony of the-Chairman of the Board of Regents is that the Regents approved revisions in the handbook \u201cas administrative purpose only.\u201d Administration is management; \u201c * * * the-principles, practices, and rationalized techniques employed in achieving the objectives or aims of an organization. * * * \u201d Webster\u2019s Third New International Dictionary (1966). Under this definition, the Regents\u2019 approval was for the use of the administration in managing the University, in achieving the aims of the University.\nThe Chairman of the Board of Regents also testified that the Regents\u2019 approval was not contractual. The handbook provision involved in plaintiff\u2019s case states:\n\u201cENMU asserts and exercises the discretion implied by annual contracts.. However, the institution believes that it should provide each faculty member with timely notice concerning subsequent status. Therefore, the University will:\u201d (hereafter is listed the procedures not followed in plaintiff\u2019s case).\nBecause of the handbook reference to annual contracts, and the Chairman\u2019s characterization of the Regents\u2019 approval as-\u201cnot contractual,\u201d the Regents seem to contend that the handbook cannot be considered a part of plaintiff\u2019s contract. A similar contention was made and rejected in Greene v. Howard University, supra. There it is stated:\n\u201c * * * This qualifying clause [without contractual obligation], so it is said, relieves the University of any and' all obligations of any kind with respect to the observance of its regulations, and vests in the University an unfettered discretion * * *,\n\u00ab * * *\n\u201c * * * The very phrase relied upon * * * is in a Faculty Handbook which is replete with other provisions in conflict with the spirit of the use of that phrase now sought to be made. * * * \u201d\nIn rejecting this argument, Greene made the statement previously quoted. It is to the effect that contracts are to be read by reference to the \u201cnorms of conduct and expectations founded upon them.\u201d We view this as no more than a specific application, to a University situation, of New Mexico\u2019s general rule that a contract may be implied, or an ambiguity in a contract may be resolved, on the basis of the course of conduct of the parties. The conclusion that the handbook and the Regents\u2019 approval was \u201cnot contractual\u201d is simply not supported by any evidence. The undisputed evidence is the handbook provisions were considered to govern the University\u2019s relationship with plaintiff and the Regents\u2019 approved revisions in the handbook for use in managing the University.\nFinally, under this point, it appears to be contended that the \u201ccourse of conduct\u201d should not be a rule applicable to the University as a governmental institution. They point out that in Greene v. Howard University, supra, the University involved was private, not public. Our answer is that the issue here does not involve the public or private character of the University. Eastern New Mexico University, through its Regents, has authority \u201cto contract and be contracted with.\u201d Sections 73-22-4 and 73-22-36, N.M.S.A.1953 (Repl.Vol. 11, pt. 1). The issue here simply involves the law of contracts. Compare State v. Clark, 79 N.M. 29, 439 P.2d 547 (1968).\nThe trial court directed its verdict on the basis there was no factual issue for the jury to consider on the question of whether the contract with plaintiff for the academic year 1967-68 had been breached. We affirm the trial court\u2019s ruling because the Regents had authorized its administration to manage the University in accordance with the handbook, because the undisputed evidence shows a course of conduct that made the handbook a part of plaintiff\u2019s contract and because it is undisputed that the handbook was not followed.\nSo holding, various other issues raised by the Regents are irrelevant. These are: (a) Plaintiff made four claims in his amended complaint. Some of these alleged a tort. The Regents claim the trial court should have dismissed the tort claims. This issue is irrelevant because plaintiff did not recover on any tort claims and because no tort claim is involved in this appeal. (b) Plaintiff alleged that he had been continued as a faculty member for the 1968-69 academic year. The Regents assert this contractual claim should have been dismissed because of a failure to allege a written contract for the 1968-69 academic year. This issue is irrelevant be-cause no contract involving the 1968-69 academic year is involved in this appeal. The verdict was directed for breach of the 1967-68 contract, (c) The Regents claim they were not estopped from \u201cnot reappointing\u201d plaintiff as a professor for the 1968-69 academic year. This is irrelevant because plaintiff\u2019s possible position as a professor for 1968-69 is not involved in this appeal, (d) The Regents claim that failure to follow their own regulations might be grounds for reversing their decision to \u201cdismiss\u201d plaintiff but that such failure would not be grounds for an award of damages against the Regents. This issue is irrelevant because the dismissal, and the proceedings taken in connection with the dismissal, is pertinent only as evidentiary matter on the claim that the 1967-68 contract was breached. Whether plaintiff was properly dismissed as a professor in the 1968-69 year is not involved.\nAward of costs.\nThe judgment awards plaintiff his-\u201ctaxable costs.\u201d Section 21-1-1 (54) (d),N. M.S.A. 1953 (Repl.Vol. 4) states: \u201c* * * costs against the state, its officers, and agencies shall be imposed only to the extent permitted by law. * * * \u201d\nPlaintiff filed a bill of costs and asked that the items listed be taxed as costs. He claims he is entitled to these costs because no objection was made to his cost bill. The Regents claim no costs should be taxed because authority to do so has not been \u201cprovided by law.\u201d Both arguments misappraise the situation before us.\nAll the judgment does is award to plain.tiff such costs as are \u201ctaxable.\u201d Costs cannot be taxed against the Regents under \u00a7 21-1-1(54) (d), supra, unless permitted by law. Costs have not been taxed in the record before us so, at this point, we do not know whether any costs will ever be taxed. As to the claim that the Regents made no objection to plaintiff\u2019s cost bill, it does not appear that notice, to tax costs, has ever been given. See \u00a7 21-1-1(54) (d), supra; Prudential Insurance Company of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967).\nThe record concerning the costs presents no 'issue for decision.\nThe judgment is affirmed.\nIt Is So Ordered.\nHENDLEY and SUTIN, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "David L. Norvell, Atty. Gen., Santa Fe, Mark B. Thompson, III, James C. Compton, Jr., Asst. Attys. Gen., for defendants-appellants.", "Paul A. Phillips, Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "483 P.2d 1314\nRichard K. HILLIS, Plaintiff-Appellee, v. Charles W. MEISTER, President of Eastern New Mexico University et al., Defendants-Appellants.\nNo. 622.\nCourt of Appeals of New Mexico.\nApril 2, 1971.\nDavid L. Norvell, Atty. Gen., Santa Fe, Mark B. Thompson, III, James C. Compton, Jr., Asst. Attys. Gen., for defendants-appellants.\nPaul A. Phillips, Albuquerque, for plaintiff-appellee." }, "file_name": "0474-01", "first_page_order": 530, "last_page_order": 534 }