Coffey v. Planet Group

834 	287 NEBRASKA REPORTS
the Counsel for Discipline, demonstrating that respondent is
adhering to the foregoing terms of probation. The quarterly
report shall include a certification by the monitor that the
monitor has reviewed the report and that respondent continues
to abide by the terms of the probation.
CONCLUSION
We find that respondent should be and hereby is suspended
from the practice of law for a period of 3 years. Should
respondent apply for reinstatement, his reinstatement shall be
conditioned upon respondent’s being on probation for a period
of 2 years, including monitoring following reinstatement, sub-
ject to the terms of probation outlined above. Respondent is
also directed to pay costs and expenses in accordance with
Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb.
Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of suspension.
William d. C offey, appellant, v.
planet group, inC., appellee.
845 N.W.2d 255
Filed April 4, 2014. 	No. S-13-194.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. ____: ____. An appellate court will affirm a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences that may be drawn
from the facts and that the moving party is entitled to judgment as a matter
of law.
3. Statutes: Judgments: Appeal and Error. The interpretation of statutes and
regulations presents questions of law. An appellate court independently reviews
questions of law decided by a lower court.
4. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:36 AM CST

COFFEY v. PLANET GROUP 	835
Cite as 287 Neb. 834
5. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not
look beyond a statute to determine the legislative intent when the words are plain,
direct, or unambiguous.
6. Contracts: Wages. Neb. Rev. Stat. § 48-1229(4) (Reissue 2010) allows an
employer and employee to contractually agree to define when a commission
becomes earned as a wage.
7. 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 mean-
ing as an ordinary or reasonable person would understand them.
8. Contracts: Parties. The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties to the contract do
anything which will injure the right of another party to receive the benefit of
the contract.
9. ____: ____. The nature and extent of an implied covenant of good faith and fair
dealing are measured in a particular contract by the justifiable expectations of
the parties. Where one party acts arbitrarily, capriciously, or unreasonably, that
conduct exceeds the justifiable expectations of the second party.
10. ____: ____. A violation of the covenant of good faith and fair dealing occurs
only when a party violates, nullifies, or significantly impairs any benefit of
the contract.
11. 	Contracts. The scope of conduct prohibited by the covenant of good faith is
circumscribed by the purposes and express terms of the contract.
12. Termination of Employment. Unless constitutionally, statutorily, or contractu-
ally prohibited, an employer, without incurring liability, may terminate an at-will
employee at any time with or without reason.
13. Termination of Employment: Public Policy: Damages. Under the public policy
exception to the at-will employment doctrine, an employee can claim damages
for wrongful discharge when the motivation for the firing contravenes pub-
lic policy.
14. Termination of Employment: Public Policy. The public policy exception to
the at-will employment doctrine is restricted to cases when a clear mandate of
public policy has been violated, and it should be limited to manageable and
clear standards.
15. ____: ____. In determining whether a clear mandate of public policy is violated,
courts should inquire whether the employer’s conduct contravenes the letter or
purpose of a constitutional, statutory, or regulatory provision or scheme.
16. Termination of Employment: Wages: Public Policy. The Nebraska Wage
Payment and Collection Act, Neb. Rev. Stat. §§ 48-1228 to 48-1232 (Reissue
2010), does not represent a very clear mandate of public policy which would
warrant recognition of an exception to the employment-at-will doctrine.
Appeal from the District Court for Douglas County: shelly
r. stratman, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.

836 	287 NEBRASKA REPORTS
Julie Schultz Self, Heather Voegele-Andersen, and Kristin
M.V. Farwell, of Koley Jessen, P.C., L.L.O., for appellee.
heaviCan, C.J., Wright, C onnolly, stephan, mCC ormaCk,
and Cassel, JJ.
mCC ormaCk, J.
NATURE OF CASE
William D. Coffey seeks commissions for two projects that
he worked on that were ongoing at the time of his termination
as a salesperson from Planet Group, Inc. Planet Group argues
that under the 2008 Sales Compensation Plan (Compensation
Plan) signed by Coffey, commissions are earned only when
the sales contract is signed during employment. The prominent
issue presented by this appeal is whether the Compensation
Plan is void under Neb. Rev. Stat. § 48-1229(4) (Reissue 2010)
of the Nebraska Wage Payment and Collection Act (Wage Act).
We find that the 2007 legislative amendments to § 48-1229(4)
allow an employer and employee to contractually define when
a commission becomes payable. We affirm the district court’s
order granting partial summary judgment, because the commis-
sions for the two projects are not payable to Coffey under the
Compensation Plan.
BACKGROUND
In 2007, Coffey was hired as a salesperson at Planet Group.
His role was to bolster international sales and assist in sell-
ing “enterprise solutions” to prospective customers. As a part
of his employment, Coffey signed the Compensation Plan.
The plan set out the requirements for when a commission
was earned and how it would be paid. In its relevant parts,
it stated:
Commission Payment:
Commissions are paid at the end of the month follow-
ing the month that contracts were approved, executed
and received by Planet Group and down payments are
received. . . .
75% of Commissions are paid upon signed contract,
and the final 25% upon contract completion. . . . The

COFFEY v. PLANET GROUP 	837
Cite as 287 Neb. 834
upfront commission portion is not fully “earned” until
each contract is completed.
. . . .
Termination
A 	Participant 	who 	is 	terminated 	or 	resigns 	from
employment with Planet Group the commission payments
will cease. . . . Commissions are deemed “earned” when
a contract has been signed by the customer and the down
payment under the contract has been received.
On March 26, 2009, Coffey’s employment was terminated
by Planet Group as part of Planet Group’s reduction in force.
Coffey was terminated with over 20 other employees.
At the time of his termination, Coffey had four relevant
projects he had been working on: (1) the “First Data, US,
Recurring Payments project” (Recurring Billing Project); (2)
the “First Data, Argentina, B-24 Services project” (Posnet
Project); (3) the “TIVIT project” (TIVIT Project); and (4)
the “Mexico SSP project” (Mexico SSP Project). According
to Coffey’s affidavit, these projects either were orally agreed
to, had been given approval by the customer, or were in the
process of obtaining formal approval. Coffey admits that the
Compensation Plan applied to the Recurring Billing Project,
the Posnet Project, and the Mexico SSP Project. The TIVIT
Project, however, had its own compensation plan.
For the 2 days prior to his termination, Coffey had been
in negotiations with representatives from “First Data” on the
Recurring Billing Project. According to Coffey, he and the
representatives agreed that the project would be completed
in two phases. The first phase’s contract was executed on
March 26, 2009, and the charges were billed. The second
phase’s contract was deferred until after the completion of
the first phase to address any issues that may have occurred
during the first phase. Coffey received commission for the
first phase, but Planet Group denied him commission for the
second phase.
Coffey attested that for the Posnet Project, he had com-
pleted his role as a salesperson, and that he is owed a com-
mission. Coffey argued that the only work to be completed
was the execution of new work orders for the remaining

838 	287 NEBRASKA REPORTS
phases of the project, which were to be executed after the
initial phase.
In his amended complaint, Coffey alleged that he was owed
commissions on each of the four projects. He alleged that for
each project, there were “orders on file.” He further alleged
that Planet Group terminated him in bad faith, which he
claims was a breach of the implied covenant of good faith and
fair dealing.
The district court partially sustained Planet Group’s motion
for summary judgment. It granted the motion for summary
judgment on Coffey’s bad faith claim, because it found that
Planet Group had the right to terminate Coffey as an at-will
employee and that there was no evidence to support the exis-
tence of a public policy violation.
The district court also granted summary judgment on the
Recurring Billing Project, the Posnet Project, and the Mexico
SSP Project. The district court found that the Compensation
Plan required a signed contract prior to a commission’s being
paid. The district court found that all commissions had prop-
erly been paid on these three projects. It further found that the
signed contract requirement did not contradict the Wage Act’s
definition of wages under § 48-1229(4).
After a jury trial on the TIVIT Project claim, Coffey was
awarded $100,933 for commission owed to him. After trial, the
district court denied Coffey’s motion to alter or amend regard-
ing the earlier order granting Planet Group’s motion for sum-
mary judgment. Coffey now appeals.
ASSIGNMENTS OF ERROR
Coffey assigns that the district court erred in (1) sustain-
ing the motion for summary judgment as to the claim for
payments on the Recurring Billing Project, (2) sustaining
the motion for summary judgment as to additional payments
owed on the Posnet Project, (3) sustaining the motion for
summary judgment as to the claim of a breach of the implied
covenant of good faith and fair dealing, (4) determining
that there can be no claim for a breach of the covenant of
good faith and fair dealing under Nebraska law, (5) defining
“orders on file” as an executed contract rather than submitting

COFFEY v. PLANET GROUP 	839
Cite as 287 Neb. 834
the issue to the jury, (6) partially sustaining the motion for
summary judgment, and (7) denying the motion to alter or
amend the judgment.
STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against 	whom 	the 	judgment 	was 	granted 	and 	gives 	that
party the benefit of all reasonable inferences deducible from
the evidence.1
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law.2
[3] The interpretation of statutes and regulations presents
questions of law.3 We independently review questions of law
decided by a lower court.4
ANALYSIS
Wage aCt
The crux of Coffey’s argument on appeal is that § 48-1229(4)
of the Wage Act does not permit an employer and an employee
to contractually define when a commission becomes payable
as “wages.” Coffey argues that, therefore, he is owed a com-
mission for both the Recurring Billing Project and the Posnet
Project, because both projects constitute “orders on file” as
contemplated under § 48-1229(4).
We have previously stated that an employer and an employee
cannot circumvent the statutory definition of wages through
an employment agreement, because the Wage Act controlled
the determination of what commissions were payable.5 At the
1 Peterson v. Homesite Indemnity Co., ante p. 48, 840 N.W.2d 885 (2013).
2 Id.
3 Carey v. City of Hastings, ante p. 1, 840 N.W.2d 868 (2013).
4 Id.
5 Moore v. Eggers Consulting Co., 252 Neb. 396, 562 N.W.2d 534 (1997).

840 	287 NEBRASKA REPORTS
time, the Wage Act required that a commission became pay-
able if it was an order on file at the time of the employee’s
termination.6 However, these holdings were based on a version
of § 48-1229(4) not in effect today.
The Wage Act was modified in response to our decision in
Roseland v. Strategic Staff Mgmt.7 In Roseland, we held that
under the language of § 48-1229(4) (Reissue 1998) of the Wage
Act, vacation leave provided by an employer was a fringe ben-
efit and a wage payable to an employee upon termination. In
doing so, we found that the employment agreement’s provision
stating that the unused vacation leave was not payable upon
separation was null and void because it contradicted the Wage
Act. After Roseland, the Legislature amended § 48-1229(4) in
2007.8 The new amended version states in full:
Wages means compensation for labor or services rendered
by an employee, including fringe benefits, when previ-
ously agreed to and conditions stipulated have been met
by the employee, whether the amount is determined on
a time, task, fee, commission, or other basis. Paid leave,
other than earned but unused vacation leave, provided as a
fringe benefit by the employer shall not be included in the
wages due and payable at the time of separation, unless
the employer and the employee or the employer and
the collective-bargaining representative have specifically
agreed otherwise. Unless the employer and employee
have specifically agreed otherwise through a contract
effective at the commencement of employment or at least
ninety days prior to separation, whichever is later, wages
includes commissions on all orders delivered and all
orders on file with the employer at the time of separation
of employment less any orders returned or canceled at the
time suit is filed.9
6 Id.
7 Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006).
8 See 2007 Neb. Laws, L.B. 255 (now codified at Neb. Rev. Stat.
§ 48-1229(4) (Reissue 2010)).
9 § 48-1229(4) (Reissue 2010).

COFFEY v. PLANET GROUP 	841
Cite as 287 Neb. 834
Not only did the Legislature add language to fringe ben-
efits and unused vacation leave, but it also added a new
clause preceding the sentence explaining when commissions
become payable. This is our first opportunity to interpret the
new amendments in terms of when a commission becomes
payable.
[4,5] Our rules of statutory interpretation guide our analysis.
Absent a statutory indication to the contrary, we give words in
a statute their ordinary meaning.10 We will not look beyond a
statute to determine the legislative intent when the words are
plain, direct, or unambiguous.11 So, we first consider the plain
language of the statute.
[6] We find that the plain meaning of “[u]nless the employer
and employee have specifically agreed otherwise through a
contract effective at the commencement of employment or at
least ninety days prior to separation” is that an employer and
employee can contractually agree to define when a commission
becomes earned as a wage. This clause qualifies the definition
of when a commission becomes payable. Thus, absent a con-
tractual agreement stating the contrary, a commission is pay-
able at the time of the employee’s termination if the order is
delivered or if the order is on file. However, the 2007 amend-
ment to § 48-1229(4) now allows an employer and employee
to contractually define when a commission becomes “wages”
via provisions in a signed employment agreement. The district
court did not err in determining the parties could contractually
define when a commission becomes earned and payable under
the Wage Act.
[7] We must now determine if Coffey and Planet Group
contractually defined when a commission was earned. 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 per-
son would understand them.12 The Compensation Plan states:
10 Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).
11 Id.
12 RSUI Indemnity Co. v. Bacon, 282 Neb. 436, 810 N.W.2d 666 (2011).

842 	287 NEBRASKA REPORTS
“A Participant who is terminated or resigns from employment
with Planet Group the commission payments will cease. . . .
Commissions are deemed ‘earned’ when a contract has been
signed by the customer and the down payment under the con-
tract has been received.” The Compensation Plan, signed by
Coffey more than 90 days prior to his termination, requires that
Coffey be employed when the contract is signed and when the
downpayment is received to earn his commission. Therefore,
we find that the district court did not err in determining that a
commission was earned by Coffey only if there was a signed
contract and a downpayment had been received for such con-
tract. We must now determine whether the evidence, viewed
in the light most favorable to Coffey, established that there
are no genuine issues of material fact that there was not a
signed contract for either the Recurring Billing Project or the
Posnet Project.
We find that Coffey has been paid all earned commissions
for the Recurring Billing Project. The evidence presented
establishes that the Recurring Billing Project was to be com-
pleted in two phases: a requirements-analysis phase and a
second phase which involved the purchase of the software
system for the recurring billing contract. The second contract,
for which Coffey now seeks a commission, was not entered
into at the time he was terminated. Coffey has conceded
so in his brief. Coffey’s supervisor at Planet Group, whose
deposition testimony was offered by Coffey, testified that
the second contract was not signed until August 2009, after
Coffey was terminated. Additionally, it is also clear from the
“Requirements Analysis” contract that the second contract
was a separate and distinct contract, not yet entered into. The
“Requirements Analysis” contract contains language referenc-
ing “a proposed, larger project” that could be entered into if
the “[c]ustomer moves forward with the purchase of the soft-
ware system.”
Likewise, the evidence viewed in a light most favorable
to Coffey establishes that Coffey has been paid all com-
missions for each Posnet Project contract signed during his
employment. Coffey admits that he has been paid for all
Posnet Project contracts signed during his employment. In

COFFEY v. PLANET GROUP 	843
Cite as 287 Neb. 834
his appellate brief, Coffey has conceded that additional pay-
ments for the Posnet Project were made only after a “[c]hange
[o]rder” had been signed on June 4, 2009. Coffey conceded
that the change order extended the project end date and
discussed additional payments to be made. Coffey also con-
ceded that the revenue, from which he seeks a commission,
was secured by Planet Group through change orders signed
after his termination. From this evidence, there are no gen-
uine issues of material fact that the commission Coffey now
seeks for the Posnet Project was from a contract signed after
his termination.
We find that there are no genuine issues of material fact
that Coffey was no longer employed with Planet Group when
the additional Recurring Billing Project and Posnet Project
contracts were signed. Therefore, we affirm the grant of partial
summary judgment in favor of Planet Group on the commis-
sions arising from the Posnet Project.
good faith and fair dealing
Coffey argues that the district court erred in concluding that
there is no claim for breach of good faith because employees
are terminable at will under Nebraska law. He argues that an
employee can be terminated on an at-will basis and still have
a good faith and fair dealing claim if the employer wrong-
fully acts to defeat the employee’s reasonable expectations.
We disagree.
[8-11] The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties to
the contract do anything which will injure the right of another
party to receive the benefit of the contract.13 The nature and
extent of an implied covenant of good faith and fair dealing
are measured in a particular contract by the justifiable expec-
tations of the parties.14 Where one party acts arbitrarily, capri-
ciously, or unreasonably, that conduct exceeds the justifiable
expectations of the second party.15 A violation of the covenant
13 Id.
14 Id.
15 Id.

844 	287 NEBRASKA REPORTS
of good faith and fair dealing occurs only when a party vio-
lates, nullifies, or significantly impairs any benefit of the
contract.16 The scope of conduct prohibited by the covenant of
good faith is circumscribed by the purposes and express terms
of the contract.17
Here, the contract between Coffey and Planet Group was the
Compensation Plan signed by both parties as part of Coffey’s
employment. In his amended complaint, Coffey alleged that
Planet Group terminated his employment in bad faith to avoid
paying Coffey additional commissions under the Wage Act.
[12-15] Unless constitutionally, statutorily, or contractu-
ally prohibited, an employer, without incurring liability, may
terminate an at-will employee at any time with or without rea-
son.18 We recognize, however, a public policy exception to the
at-will employment doctrine.19 Under the public policy excep-
tion, an employee can claim damages for wrongful discharge
when the motivation for the firing contravenes public policy.20
The public policy exception is restricted to cases when a clear
mandate of public policy has been violated, and it should be
limited to manageable and clear standards.21 In determining
whether a clear mandate of public policy is violated, courts
should inquire whether the employer’s conduct contravenes
the letter or purpose of a constitutional, statutory, or regulatory
provision or scheme.22
[16] We have previously determined that the Wage Act did
not “‘represent a “very clear mandate of public policy” which
would warrant recognition of an exception to the employment-
at-will doctrine.’”23 The Wage Act does not prohibit employ-
ers from discharging employees, and it does not provide
16 Id.
17 Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).
18 Trosper v. Bag ’N Save, 273 Neb. 855, 734 N.W.2d 704 (2007).
19 Id.
20 Id.
21 Id.
22 Id.
23 Id. at 858, 734 N.W.2d at 707.

COFFEY v. PLANET GROUP 	845
Cite as 287 Neb. 834
employees with any substantive rights.24 Thus, while the Wage
Act provides Coffey with a remedy to collect any compensa-
tion which Planet Group may owe him, it does not “declare
‘“an important public policy with such clarity as to provide a
basis for a civil action for wrongful discharge.”’”25
Additionally, we find Planet Group did not act in bad faith
in denying the commissions to Coffey under the Compensation
Plan. A violation of the covenant of good faith and fair deal-
ing occurs only when a party violates, nullifies, or signifi-
cantly impairs any benefit of the contract.26 We have already
established that under the clear and unambiguous terms of the
Compensation Plan, a commission can be earned only if the
contract is signed while the employee is employed with the
company. Under the Compensation Plan, Planet Group has
upheld its requirements and has paid Coffey the proper benefits
of the contract.
We conclude, as a matter of law, that Coffey cannot raise a
bad faith claim based on his termination as an at-will employee
with Planet Group, because there is no evidence of a public
policy violation. Coffey’s only avenue for recovery in this case
was his breach of contract claims he raised in relation to the
four projects. Therefore, the district court did not err in deter-
mining that Planet Group had the right to terminate Coffey’s
employment and in determining as a matter of law that Planet
Group could not have acted in bad faith in doing so.
CONCLUSION
For the reasons stated herein, we affirm the judgment of the
district court.
affirmed.
miller-lerman, J., not participating.
24 Id.
25 Id. at 874, 734 N.W.2d at 717 (Stephan, J., dissenting).
26 RSUI Indemnity Co. v. Bacon, supra note 12.