SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6906-93T2
JAMES B. HEALY,
Plaintiff-Appellant,
v.
FAIRLEIGH DICKINSON UNIVERSITY,
Defendant-Respondent.
and
FRANCIS J. MERTZ, NANCY S.
BARRETT, MORDECHAI ROZANSKI,
Defendants.
_______________________________________________
Argued December 5, 1995 - Decided February
20, 1996
Before Judges Pressler, Keefe and Wefing.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Timothy R. Hott argued the cause for
appellant (Hott & Margolis, attorneys).
Maurice J. Nelligan, Jr. argued the cause for
respondents (Apruzzese, McDermott, Mastro &
Murphy, attorneys).
The opinion of the court was delivered by
KEEFE, J.A.D.
Plaintiff, James B. Healy (Healy), appeals only from that part of a final judgment which determined, as a matter of law, that he did not acquire de facto tenure at defendant Fairleigh Dickinson University (University). Consequently, this appeal
only involves the complaint brought by Healy against the
University. We affirm.
In 1980, Healy became a full time faculty member of the
University with the rank of adjunct associate professor. His one
year contract for the academic year 1980-81 incorporated the
terms of the University's collective bargaining agreement with
the American Association of University Professors' contract (the
AAUP contract). Thereafter, Healy received a series of one year
probationary contracts through the academic year 1984-85. During
that period, Healy requested promotion to full professor and was
denied the promotion because he lacked a doctorate degree. The
lack of the doctorate and his failure to publish were cited in
1984 memos issued by his supervising dean as reasons why Healy
could not gain tenure under the AAUP contract. Healy received
copies of those memos.
Healy's appointment for his sixth academic year (1985-86)
was different from the prior years in that the letter of
appointment notified him that his position as associate professor
was a "non-tenured position." Healy registered no complaint over
that designation.
At the conclusion of the 1985-86 academic year, Healy
received notice that he would be a senior administrator with the
rank of associate dean. However, his appointment required that
he also teach three credits per semester without additional
compensation. Unlike faculty members who were on a monthly
payroll, Healy was paid semi-monthly as were other administrators.
As a senior administrator, Healy was subject to annual
performance evaluations. The evaluation for his final year at
the University showed that his overall performance was
"significantly below expectations." On that basis he was
discharged in June 1990. Healy maintained that he could not be
discharged because he had acquired de facto tenure under the
provisions of the AAUP contract and its successor, the 1988
Faculty Handbook (the Handbook) which contained essentially the
same provisions for acquiring tenure.
Both the AAUP contract and the Handbook provide, among other
things respecting tenure, that a faculty member who completes a
probationary period of fourteen continuous academic semesters as
a full-time professor shall have tenure upon reaching the next
academic semester following the completion of such probationary
period. Because of Healy's role as an administrator/instructor
beginning in 1986-87, there was a factual dispute as to whether
he had served the requisite number of years as a faculty member
under the above provision. The jury resolved that issue in
Healy's favor.
However, the University maintained that the resolution of
that factual dispute was irrelevant to the question of whether
Healy had obtained tenure. The University maintained that the
clause relied upon by Healy to assert de facto tenure was not
inserted in the contract for that purpose. It argued that tenure
could not be obtained absent an affirmative grant of tenure by
the University in accord with well defined procedures set forth
both in the AAUP contract and the Handbook.
In a post-jury verdict bench opinion, the trial judge agreed
with the University. She concluded that the evidence revealed
that the AAUP contract and Handbook provisions dealing with
tenure were not ambiguous and that their interpretation was a
legal question which only the court could resolve. As such, the
trial judge concluded that Healy's reliance on the previously
cited provision of the AAUP contract and Handbook was misplaced,
and that de facto tenure could not be attained at the University.
On appeal Healy contends that the judge erred in: (1)
substituting her decision for the jury's verdict; (2)
disregarding the testimony of his expert witness; and (3)
interpreting the AAUP contract and the Handbook provisions under
relevant case law and applicable contract construction principles
so as to conclude that he did not have tenure.
Healy maintains that the trial judge's determination that he did not have tenure ignored the jury's verdict in his favor on the tenure issue and is the equivalent of a judgement notwithstanding the jury verdict. Thus, Healy implicitly contends that the entire tenure issue was before the jury.
Healy's contention is clearly wrong. The record reflects that the judge determined that the tenure issue was a mixed question of fact and law because his claim of de facto tenure involved a determination of the number of semesters he was
employed as a faculty member (the fact issue), as well as an
interpretation of the AAUP contract and the Handbook provision
upon which he relied to support his contention that he had
acquired de facto tenure (the legal issue). As to the latter
issue, the judge determined, and Healy conceded, that the
provisions were not ambiguous, and thus, their interpretation was
a question of law for the court.
Although the judge did not say so specifically, she
apparently reasoned that if the jury resolved the fact issue
against Healy, there would be no need for her to construe the
contract because the factual predicate for Healy's alleged
contract right would not then exist. Consequently, she elected
to have the jury answer the fact issue first. The jury was not
asked to determine if plaintiff had tenure, but rather was only
asked to determine the length of plaintiff's service as a faculty
member. This point is made clear in the judge's following
response to a jury question.
The only question you have before you is
whether or not Mr. Healy served starting with
the 15th consecutive [semester] as a faculty
person. Tenure is not a question you're
going to determine. You're only going to
determine that fact. Was he faculty? Did he
serve as faculty for the 15 consecutive
[semesters]? That's on the tenure question,
so you-so whether or not that means a
contract for Mr. Healy is not something
you're going to decide.
Healy next contends that the trial judge erred in disregarding the testimony of his expert witness on academic
tenure. Dr. Koster opined that based upon his "reading" of the
Handbook, Healy had acquired tenure by virtue of his length of
service. By admitting Koster's testimony into evidence, Healy
argues that the trial judge implicitly conceded that the issue
was one for the jury to decide. We reject that contention.
By the end of the trial, it was clear that there was no
ambiguity in either the AAUP contract or the Handbook in respect
of the clause upon which Healy relied to assert de facto tenure.
The undisputed testimony at trial showed that the subject
provision had originated during the time when there was
collective bargaining between the faculty union and the
University. The provision had been proposed as a means of
determining exactly when the award of tenure became effective for
those faculty who had been hired in the middle of an academic
year. Earlier labor agreements had simply referred to a seven
year probationary term which left unanswered when the award of
tenure became effective if one were hired in January of an
academic year. The switch to fourteen continuous semesters
clearly defined exactly when tenure attached. After the demise
of collective bargaining, the same provision was carried forward
into the Handbook.
Under our evidence rules, expert testimony is admissible
only where it "will assist the trier of fact . . . ." N.J.R.E.
702. Expert witnesses simply may not render opinions on matters
which involve a question of the law. See, e.g. Marx & Co., Inc.
v. Diners' Club Inc.,
550 F.2d 505 (2nd Cir.), cert. denied,
434 U.S. 861,
98 S. Ct. 188,
54 L. Ed. 134 (1977) (holding that it
was error for the trial court to allow a lawyer/witness to render
his opinion on the legal significance of certain contract terms,
and the legal obligations arising therefrom). State v. Grimes,
235 N.J. Super. 75, 79 (App. Div.), certif. denied,
118 N.J. 222
(1989) (holding expert opinion is not admissible concerning the
domestic law of the forum). Therefore, once the trial court
correctly determined that the interpretation of the contract
language was a legal matter, she was obligated to disregard the
expert's opinion concerning its interpretation. The question
before the court was not whether hypothetically there can be de
facto tenure. The question was whether the parties provided for
it.
We are satisfied that the trial judge properly applied the rules of contract construction in arriving at her conclusion that de facto tenure was not provided for in the AAUP contract or the Handbook.
Healy's reliance upon Dugan v. Stockton State College, 245 N.J. Super. 567 (App. Div. 1991); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed.2d 570 (1972); and Kovats v. Rutgers University, 633 F. Supp. 1469 (D.N.J. 1986), remanded, 822 F.2d 1303 (3rd Cir. 1987), to support his contention that New Jersey law permits the acquisition of tenure at a private university by virtue of length of service is misplaced. In Dugan, we held that a state college employee who met the
statutory prerequisites for tenure under the State and County
College Tenure Act, N.J.S.A. 18A:60-1 to -15, automatically
acquired tenure by operation of law without further participation
by the board of trustees. Id. at 573. The decision rested
solely on the fact that tenure was governed by the provisions of
the statute. Ibid. Thus, the cases are completely
distinguishable.
Perry, supra, is also clearly distinguishable. In that
case, plaintiff was a professor at a state junior college which
had no formal tenure system. 408 U.S. at 594,
92 S. Ct. 2696,
33 L. Ed.2d 575. The Supreme Court simply held that a teacher
employed for a number of years at the same institution should be
permitted to show that, while no explicit tenure system existed,
a de facto tenure system did exist at the institution. Id. at
602,
92 S. Ct. 2700,
33 L. Ed.2d 580. Here, unlike Perry, the
University has a formal, established tenure procedure set forth
in detail in the AAUP contract and the successor Handbook.
Furthermore, Perry involved a public institution, thereby
implicating the Fourteenth Amendment. The University here is a
private institution.
Finally, Kovats, supra, is of no assistance to Healy. The
Third Circuit opinion simply stands for the proposition that the
question of whether the professors involved in that case had
acquired de facto tenure under a university regulation based upon
their length of service was a triable issue of fact. 822 F.
2d at
1313-1315. As the University points out in its brief, on remand,
Judge Debevoise in an unpublished opinion, using an analysis
strikingly similar to the one used by the trial judge in this
case, concluded that a Rutgers faculty member does not have an
automatic right to tenure if he or she is reappointed for a term
extending beyond the probationary term defined in the regulation.
The reason for the judge's conclusion was that such a result
would be inconsistent with the detailed evaluation procedures set
forth in the regulation. Although Judge Debevoise's resolution
of an analogous issue is not binding on us, it is nonetheless
helpful in resolving this appeal. Healy's reply brief offers no
meaningful response to the defendant's exposition of the manner
in which a similar issue to the one at hand was ultimately
resolved by another trial court.
In Newark Publisher's Assoc. v. Newark Typographical Union,
22 N.J. 419 (1956), our Supreme Court established a principle of
contract interpretation that undoubtedly guided both Judge
Debevoise and the trial judge in this case:
A subsidiary provision is not so to be
interpreted as to conflict with the obvious
"dominant" or "principal" purpose of the
contract. We seek for the intention of the
parties; and to this end the writing is to
have a reasonable interpretation.
Disproportionate emphasis upon a word or a
clause or a single provision does not serve
the purpose of interpretation . . . . [T]hus
the literal sense of terms may be qualified
by the context.
* * *
Evidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement, even where the contract is free from ambiguity, not for the purpose
of changing the writing, but to secure light
by which its actual significance may be
measured.
[Id. at 426-27].
Applying these principles to the matter under consideration, we
conclude that Healy's "disproportionate emphasis upon . . . a
single [Handbook] provision" to support his tenure claim "does
not serve the purpose of interpretation." Id. at 426. In
addition, the interpretation of the probationary appointments
provision urged by Healy "conflict[s] with the `dominant' or
`principal' purpose of the [tenure policy]," which places
substantive and procedural prerequisites on the acquisition of
tenure. Ibid. Moreover, in respect of how the parties conducted
themselves pursuant to the AAUP contract and the Handbook, the
record reflects that no one at the University had ever acquired
tenure absent an affirmative grant of tenure by the Board of
Trustees.
The judgement under review is affirmed.