Schiefelbein v. School Dist. No. 0013

CONCLUSION
Because the Board was not exercising a judicial function
in its determination to vacate the road in question, the district
court properly dismissed the petition in error. We affirm.
A ffirmed .
dAn S chiefelbein , AppellAnt , v . S chool diStrict no . 0013
of thurSton county , nebrASkA, AlSo known AS wAlthill
public S chool , A politicAl SubdiviSion of the
S tAte of nebrASkA, Appellee .
758 N.W.2d 645
Filed September 30, 2008. 	No. A-08-283.
1. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
2. Breach of Contract: Damages: Appeal and Error. A suit for damages arising
from breach of a contract presents an action at law. In a bench trial of a law
action, the trial court’s factual findings have the effect of a jury verdict and will
not be disturbed on appeal unless clearly wrong.
3. Evidence: Stipulations: Appeal and Error. In a case in which the facts are
stipulated, an appellate court reviews the case as if trying it originally in order to
determine whether the facts warranted the judgment.
4. Contracts: Judgments: Appeal and Error. The meaning of a contract is a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
5. Schools and School Districts: Employment Contracts: Termination of
Employment. The contract of a probationary certificated employee shall be
deemed renewed and remain in full force and effect unless amended or not
renewed in accordance with Neb. Rev. Stat. §§ 79-824 to 79-842 (Reissue 2003
& Cum. Supp. 2006).
6. ____: ____: ____. Neb. Rev. Stat. § 79-827 (Reissue 2003) authorizes cancella-
tion of a superintendent’s contract during the school year for cause.
7. Schools and School Districts: Employment Contracts: Termination of
Employment: Notice. Neb. Rev. Stat. § 79-827(2) (Reissue 2003) requires a
written notice and specifies only two requirements for its content: (1) The notice
must state the alleged grounds for cancellation of the contract, and (2) it must
notify the employee that his or her contract may be canceled.
8. Schools and School Districts: Employment Contracts: Termination of
Employment: Notice: Time. Under Neb. Rev. Stat. § 79-827(2) (Reissue 2003),
upon receiving notice of possible cancellation of his or her contract, an employee
has 7 calendar days to request a hearing.
80 	17 NeBRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

9. Schools and School Districts: Employment Contracts: Termination of
Employment: Time. If a hearing on cancellation of an employee’s contract
is not requested within the time provided for in Neb. Rev. Stat. §§ 79-824 to
79-842 (Reissue 2003 & Cum. Supp. 2006), the school board shall make a
final determination.
10. Schools and School Districts: Employment Contracts. A superintendent
remains a probationary employee regardless of length of service.
Appeal from the District Court for Thurston County: dArvid
d. Q uiSt, Judge. Affirmed.
Scott J. Norby, of McGuire & Norby, for appellant.
Jeanelle R. Lust, of knudsen, Berkheimer, Richardson &
endacott, L.L.p., for appellee.
inbody, Chief Judge, and moore and cASSel, Judges.
cASSel, Judge.
INTRODUCTION
Dan Schiefelbein appeals from a declaratory judgment that
his employment contract as superintendent of School District
No. 0013 of Thurston County was validly canceled and validly
not renewed. Because we conclude that (1) the district’s board
of education gave sufficient notice of cancellation of the con-
tract, (2) Schiefelbein did not request a hearing, and (3) the
board thereafter took action to cancel the contract, we affirm.
BACkGROUND
The district is a Class III school district under Nebraska law.
The district employed Schiefelbein as superintendant pursuant
to a written contract the parties signed on April 13, 2006. The
contract stated, in relevant part:
1. TeRM. [The district] hereby employs [Schiefelbein]
for a period of one (1) year, beginning on the first day
of July, 2006 and terminating on the 30th day of June,
2007. . . .
. . . .
12. TeRMINATION OF eMpLOYMeNT CONTRACT.
except as provided herein, this contract may be canceled,
not renewed, terminated, or amended by a vote of a
SChIeFeLBeIN v. SChOOL DIST. NO. 0013 	81
Cite as 17 Neb. App. 80

majority of [the board] pursuant to procedures described
by applicable state statute . . . .
. . . .
13. 	ReNeWAL 	OF 	eMpLOYMeNT 	CONTRACT.
[The board] will review this Agreement at their regularly
scheduled February meeting, and [the board] will provide
any notice of its intention to not renew the contract to
[Schiefelbein] on or before February 15th. If no notices
are given by either party on or before said date, the con-
tract shall, by its own terms, automatically renew for one
additional school year.
. . . .
19. NOTICeS: Any notices that are required under
the terms of this Agreement shall be first class mailed or
hand-delivered to the parties at the following addresses
. . . .
In January 2007, the board considered but took no action
upon Schiefelbein’s contract. At the board’s meeting on January
8, 2007, the board considered a motion to “offer a one[-]year
Superintendent Contract to . . . Schiefelbein for school year
2007-2008.” Of the board’s six members, two voted in favor
of the motion and three voted against. One member abstained.
The minutes of the meeting then recite that the motion failed.
Schiefelbein was present at this vote. No other motions on the
subject were made or considered at the January 8 meeting.
In a letter dated March 10, 2007, Schiefelbein notified the
board that because he had not received notice of nonrenewal
of his contract on or before February 15, his contract had been
automatically renewed for an additional year commencing on
July 1.
On March 26, 2007, the board passed a resolution to “give
notice to . . . Schiefelbein of [the board’s] intention to consider
non-renewal or cancellation of his employment contract.” On
the same day, the board delivered Schiefelbein a letter that
informed him of this action. It also provided reasons for the
nonrenewal or cancellation and set forth Schiefelbein’s right to
a hearing. We describe the content of the notice in more detail
in the analysis section below.
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Schiefelbein did not request a hearing. On April 9, 2007,
the board passed a resolution stating that Schiefelbein “shall
have his contract cancelled and not renewed for the 2007-2008
school year.” The board notified Schiefelbein of this decision
in a letter dated April 10, 2007.
On June 11, 2007, Schiefelbein filed a complaint for a
declaratory judgment in the district court. he sought a judg-
ment that his contract had automatically renewed. The district
counterclaimed for a declaratory judgment that the contract had
been “cancelled and/or non-renewed.” On January 10, 2008,
the court held a bench trial upon stipulated evidence, and on
February 25, the court entered judgment in favor of the dis-
trict based upon the court’s determination that the district had
both validly canceled and validly nonrenewed Schiefelbein’s
employment contract.
Schiefelbein timely appeals.
ASSIGNMeNTS OF eRROR
Schiefelbein assigns that the district court erred in (1) finding
that the district validly canceled and nonrenewed his employ-
ment contract and (2) failing to find that his employment con-
tract continued under the terms of the contract and by operation
of law.
STANDARD OF ReVIeW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is to
be determined by the nature of the dispute. City of Ashland v.
Ashland Salvage, 271 Neb. 362, 711 N.W.2d 861 (2006).
[2,3] A suit for damages arising from breach of a contract
presents an action at law. In a bench trial of a law action, the
trial court’s factual findings have the effect of a jury verdict and
will not be disturbed on appeal unless clearly wrong. Anderson
Excavating v. SID No. 177, 265 Neb. 61, 654 N.W.2d 376
(2002). In a case in which the facts are stipulated, an appel-
late court reviews the case as if trying it originally in order to
determine whether the facts warranted the judgment. Jacobson
v. Solid Waste Agency of Northwest Neb., 264 Neb. 961, 653
N.W.2d 482 (2002).
SChIeFeLBeIN v. SChOOL DIST. NO. 0013 	83
Cite as 17 Neb. App. 80

[4] The meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below. Builders Supply Co. v. Czerwinski, 275
Neb. 622, 748 N.W.2d 645 (2008).
ANALYSIS
We begin by observing that Schiefelbein’s declaratory judg-
ment action constituted a collateral attack on the board’s action
to not renew and to cancel his employment contract. See
Bentley v. School Dist. No. 025, 255 Neb. 404, 586 N.W.2d
306 (1998). In Bentley, the Nebraska Supreme Court held that
where the applicable statute required notice of nonrenewal to
be given by April 15, a notice given on April 16 was untimely,
constituted no notice at all, and was a nullity. In that circum-
stance, there was no valid action that the school board could
have taken on the recommendation contained in the notice.
As such, the school board did not exercise any judicial func-
tion in regard to that notice and a petition in error would not
have been appropriate. We now turn to the issues raised in the
instant appeal.
Nonrenewal.
[5] Schiefelbein contends that the notice on March 26, 2007,
was untimely as a notice of possible nonrenewal, because his
contract required that any such notice be given on or before
February 15. Under Nebraska’s continuing-contract law, the
contract of a probationary certificated employee “shall be
deemed renewed and remain in full force and effect unless
amended or not renewed in accordance with sections 79-824 to
79-842.” Neb. Rev. Stat. § 79-828(1) (Reissue 2003). Neb. Rev.
Stat. § 79-831 (Reissue 2003) requires that any probationary
or permanent certificated employee whose contract of employ-
ment may be amended, terminated, or not renewed for the next
school year shall be notified in writing on or before April 15 of
each year of such possible action on the contract. Schiefelbein
argues that because paragraph 13 of his contract, quoted in the
background section above, advanced the date for any notice of
nonrenewal to February 15, the March 26 notice of nonrenewal
was untimely.
84 	17 NeBRASkA AppeLLATe RepORTS

We assume, without deciding, that the contractual provision
had the effect that Schiefelbein claims. It would then follow
that upon the board’s failure to give notice of nonrenewal
by February 15, 2007, Schiefelbein’s contract automatically
renewed. The board’s attempt to give later notice of nonrenewal
would have been ineffective, and the subsequent action of the
board could not have constituted a valid final determination of
nonrenewal under § 79-831. however, because the board also
followed statutory procedures to cancel Schiefelbein’s con-
tract, which procedures derive from statutes not relying upon
timely notice by April 15 (or some earlier contractual date), we
address the parties’ arguments regarding cancellation.
Cancellation.
[6] Unlike the statutory provisions concerning nonrenewal,
Neb. Rev. Stat. § 79-827 (Reissue 2003) authorizes cancella-
tion of a superintendent’s contract “during the school year”
for cause. Such cause includes both statutory reasons (loss
of certificate, incompetence, neglect of duty, unprofessional
conduct, insubordination, immorality, or physical or mental
incapacity) and other reasons set forth in the employment
contract, as well as any breach of material provisions of the
contract. See id.
[7] A school board must provide a superintendent with a
written notice prior to considering cancellation of the employ-
ment contract, and statutory law prescribes the content of such
notice. Section 79-827(2) requires a written notice and speci-
fies only two requirements for its content: (1) The notice must
state “the alleged grounds for cancellation of the contract,” and
(2) it must notify the employee that his or her contract “may
be canceled.” Because such notice may be given at any time,
it is not subject to the notice deadline specified by § 79-831,
which pertains only to amendment, termination, or nonrenewal
of covered employment contracts.
We now set forth the content of the board’s letter of March
26, 2007, which notified Schiefelbein of the possible cancella-
tion. We omit the extensive allegations of cause, because their
specific content is not essential to our decision. We emphasize
the provisions pertinent to Schiefelbein’s argument. The letter
began as follows:
SChIeFeLBeIN v. SChOOL DIST. NO. 0013 	85
Cite as 17 Neb. App. 80

This will inform you that [the board] is considering
non-renewal and/or cancellation of your contract effec-
tive June 30, 2007, as reflected in the motion “we give
notice to . . . Schiefelbein of [the board’s] intention to
consider non-renewal or cancellation of his employment
contract” as voted upon at the March 26, 2007[,] Special
Board Meeting.
(emphasis supplied.) Following this introductory paragraph,
the letter set forth five numbered paragraphs making allega-
tions of cause, including specific factual allegations which
we need not detail in this opinion. The letter then continued
as follows:
It is for these reasons, and for information which will
be provided in greater detail should you request a hear-
ing, that causes [the board] to consider the non-renewal/
cancellation of your contract.
pursuant to statute, you are entitled, as a probationary
employee, to have a hearing on the matter by requesting
such a hearing in writing within seven (7) days. Your
request should be given to me, the Secretary of [the
board]. If you request such a hearing, it will not be a due
process hearing, but rather will be conducted pursuant
to § 79-834. You will be entitled to be represented by the
representative of your choice and you will be afforded
an opportunity to discuss and explain to [the board] your
position with regard to continued employment, to present
information, and to ask questions of those appearing on
behalf of [the district].
[The board] intends to have a hearing officer and a
court reporter to record the proceeding. This matter will
remain a confidential employment matter until a hearing
is requested and scheduled and the information in this let-
ter will not be released to the public or any news media.
Any time prior to the hearing, you have an absolute
statutory right to resign if you wish to do so. Additionally,
should you request a hearing, the names of any witnesses
expected to be called, a summary of their testimony and
any documents that may be used will be presented to
you along with notice of the time, date and place of the
86 	17 NeBRASkA AppeLLATe RepORTS

hearing, all which will occur at least five (5) days prior
to the hearing.
(emphasis supplied.)
The notice given to Schiefelbein complied with both require-
ments of § 79-827(2). First, the letter stated the grounds for
the possible cancellation. Schiefelbein does not claim that the
letter failed to comply with this requirement. Second, the letter
advised Schiefelbein that the board was considering possible
cancellation of his contract. Schiefelbein’s arguments focus on
this requirement.
[8,9] Schiefelbein’s failure to timely request a hearing on the
possible cancellation relieved the board of its duty to provide
a due process hearing. Upon receiving notice, an employee
has 7 calendar days to request a hearing. Id. Schiefelbein did
not request a hearing. “If a hearing on . . . cancellation . . . is
not requested within the time provided for in sections 79-824
to 79-842, the school board shall make a final determination.”
§ 79-831. After Schiefelbein failed to make a timely request
for hearing, the board took final action canceling Schiefelbein’s
contract effective on June 30, 2007.
To avoid the conclusion that Schiefelbein’s contract was
canceled, he first argues that “the written notice . . . makes
clear that it was exclusively a nonrenewal notice.” Brief for
appellant at 14. In making this argument, he relies upon the
two emphasized portions of the letter that (1) advise that can-
cellation would become effective on June 30, 2007, and (2)
state that the hearing would not be a due process hearing and
would be conducted using the informal procedures of Neb.
Rev. Stat. § 79-834 (Reissue 2003), which relate only to hear-
ings on nonrenewal of probationary employees.
The district responds that nothing in the statutes precludes
it from proposing a cancellation as of a particular date, that
the statutes do not require that a notice of possible cancel-
lation of contract address the hearing procedures, and that
any ambiguity arising from the reference to § 79-834 was
dispelled by other specific references to all of the protections
afforded by a due process hearing. We agree. Clearly, as a
superintendent, Schiefelbein possessed a working knowledge
of the continuing-contract law and was familiar with the
SChIeFeLBeIN v. SChOOL DIST. NO. 0013 	87
Cite as 17 Neb. App. 80

applicable statutes. The notice clearly stated that the district
was considering both a nonrenewal and a cancellation. The
district melded language applicable only to one or the other
procedure into a single notice. But we find no indication in the
record that Schiefelbein was not aware that cancellation was
being proposed.
Section 79-827 imposes no barrier to a school district’s
making a cancellation effective at a specified date. Section
79-827(1) states that the contract “may be canceled or amended
by a majority of the members of the school board during the
school year” for any of a number of specified reasons. Section
79-827(2) empowers the board to notify the employee of pos-
sible cancellation if it “determines that it is appropriate to
consider cancellation of a . . . contract during the school year
for the reasons set forth in subsection (1).” Both the contem-
plated effective date of June 30, 2007, and the notice given on
March 26 fell within the same school year under Schiefelbein’s
contract. While the board also had the power to make a can-
cellation at an earlier date—assuming that it complied with
the statutory procedures and the final action of the board took
place prior to June 30—nothing in the statute precluded speci-
fication of an effective date. Notably, Schiefelbein provides no
authority for his argument other than the language of § 79-827
discussed above.
Section 79-827 does not require that a notice of cancellation
set forth the required procedures relating to a hearing. As we
noted above, the initial notice required by § 79-827(2) imposes
only two requirements, both of which were satisfied by the
March 26, 2007, letter. Neb. Rev. Stat. § 79-832 (Cum. Supp.
2006), which defines and imposes requirements for a “for-
mal due process hearing,” clearly contemplates that after the
employee responds to the initial notice and requests a hearing,
the district will provide additional notification to the employee.
Where the employee elects not to request a hearing, such addi-
tional notification never becomes necessary.
While the letter does contain the sentence disclaiming a due
process hearing and referring to the informal hearing contem-
plated by § 79-834, when the letter is read in its entirety, it is
clear that the particular sentence related only to the board’s
88 	17 NeBRASkA AppeLLATe RepORTS

attempt to simultaneously give notice of possible nonrenewal.
The letter also specifies that Schiefelbein would be provided
with all of the due process rights enumerated in § 79-832.
These arguments may demonstrate that it would have been sim-
pler and more straightforward for the district to have provided
two separate notices, one addressing possible nonrenewal and
the other pertaining to possible cancellation. however, we find
no evidence that Schiefelbein was not aware that cancellation
was being proposed in addition to nonrenewal.
Schiefelbein’s second argument to avoid cancellation asserts
that the board “did not in fact cancel Schiefelbein’s contract
but merely nonrenewed it.” Brief for appellant at 14. This
contention primarily relies upon the same arguments we have
already rejected. Schiefelbein also argues that the board did not
actually take action to cancel the contract. The evidence clearly
shows that by majority vote of all members, the board “resolved
that . . . Schiefelbein shall have his contract cancelled and not
renewed for the 2007-2008 school year in accordance with the
recommendation of the [b]oard [s]ecretary.” While we have
assumed that this action could not be valid as a nonrenewal,
no legal reason defeats its effectiveness as a cancellation.
Although the resolution does not explicitly make the cancel-
lation effective on June 30, 2007, it does so by incorporating
the recommendation of the board’s secretary, which proposed
cancellation effective on June 30.
[10] We reject Schiefelbein’s argument that the district’s
attempt to not renew the contract—which we have assumed
to be ineffective—precluded the district from proceeding to
cancel the contract. A superintendent remains a probation-
ary employee regardless of length of service. Neb. Rev. Stat.
§ 79-824(3) (Reissue 2003). For a probationary employee, non-
renewal differs from cancellation in several important respects.
While nonrenewal of a probationary employee’s employment
contract is constrained by mandatory time limits, see § 79-831,
cancellation can be undertaken at any time during the school
year, see § 79-827. A school board may elect to not renew the
contract for any reason it deems sufficient, so long as the rea-
son is not constitutionally impermissible or inconsistent with
the continuing-contract statutes. See § 79-828(4). In contrast,
SChIeFeLBeIN v. SChOOL DIST. NO. 0013 	89
Cite as 17 Neb. App. 80

the contract can be canceled only for cause. See § 79-827. If
a hearing is requested, nonrenewal requires only an informal
hearing, see § 79-834, while cancellation mandates a formal
due process hearing, see §§ 79-827 and 79-832. In the case
before us, the board’s notice specified the grounds which it
claimed constituted cause for cancellation. had Schiefelbein
requested a hearing on cancellation, the board would have been
required to present sufficient evidence to support a cancellation
of his contract and judicial review would have been available
from an adverse decision. Because he did not request a hear-
ing on cancellation, the board was empowered to make a final
determination without presenting such proof.
CONCLUSION
We 	assume 	without 	deciding 	that 	a 	provision 	of
Schiefelbein’s contract required any notice of nonrenewal to
be given by February 15, 2007, that the board failed to timely
do so, that the notice given on March 26 was ineffective as
a notice of nonrenewal, and that the contract was automati-
cally renewed for the ensuing year by operation of law. We
conclude that on March 26, the board simultaneously gave
notice of possible cancellation of the contract, that the notice
complied with the statutory requirements, that Schiefelbein
failed to timely request a hearing on cancellation, and that
the board took the necessary action to cancel the contract. We
affirm the judgment determining that Schiefelbein’s contract
was validly canceled.
A ffirmed .
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