Holland v. Board of County Com'rs of County of Douglas

• Decision Date: 24 March 1994
• Docket Number: No. 93CA0197,93CA0197
• Parties: Thomas V. HOLLAND, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DOUGLAS, State of Colorado; and Suzy McDanal, James Sullivan, and R.A. "Chris" Christensen, as members of the Board of County Commissioners of the County of Douglas; and Michael Maag, individually and as County Manager of the County of Douglas, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 500

883 P.2d 500

Thomas V. HOLLAND, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DOUGLAS State of Colorado; and Suzy McDanal, James Sullivan, and R.A. "Chris" Christensen, as members of the Board of County Commissioners of the County of Douglas; and Michael Maag individually and as County Manager of the County of Douglas Defendants-Appellees.

No. 93CA0197.

Colorado Court of Appeals Div. V.

March 24, 1994.

Rehearing Denied April 21, 1994.

Certiorari Denied Nov. 7, 1994.

Thomas A. Feldman, Denver, for plaintiff-appellant.

Hall & Evans, Cathy H. Greer, Pamela Skelton, Denver, J. Mark Hannen, Douglas County Atty., Castle Rock, for defendants-appellees.

Opinion by Judge CASEBOLT.

Plaintiff, Thomas V. Holland, appeals from the trial court's C.R.C.P. 12(b)(5) dismissal of certain claims and from its later summary judgment dismissing his remaining claims in favor of defendants, Board of County Commissioners of Douglas County (Commissioners), Suzy McDanal, James Sullivan, and R.A. Christensen, as members of the Board, and Michael Maag, individually, and as County Manager of Douglas County. We affirm in part, reverse in part, and remand for further proceedings.

In September 1988, Holland, a licensed Colorado attorney, signed a written contract with the Douglas County Board of Commissioners to work as the Douglas County Attorney. In June 1989, Holland was notified in writing that his employment would not be renewed for another year, and his current employment was terminated. Under the terms of the agreement, the Commissioners' failure to renew, or their termination of the contract, entitled Holland to a lump sum payment of three months salary. This payment was tendered by the County and accepted by Holland. While Holland requested a pre-termination hearing, this request was denied.

Holland brought suit, alleging seven claims for relief, including state and federal due process violations for deprivation of a property right, violations of his First Amendment rights, retaliatory discharge claims under state common law, defamation, breach of contract, promissory estoppel, tortious interference with a contractual relationship, and an asserted violation of Colo. Const. art. XIV, § 8, which provides for county officers.

Pursuant to C.R.C.P. 12(b)(5), defendants filed a motion to dismiss several of Holland's claims for relief. The trial court subsequently dismissed Holland's claims of defamation and tortious interference, concluding they were barred by the Colorado Governmental Immunity Act, § 24-10-101, et seq., C.R.S. (1988 Repl.Vol. 10A). It also dismissed his claim under Colo. Const. art. XIV, § 8, finding that this provision did not grant Holland a constitutional right to a four-year appointment as County Attorney. Finally, the court dismissed all claims against the individual defendants based upon the doctrine of qualified immunity. Acting under § 13-17-201, C.R.S. (1987 Repl.Vol. 6A), the court awarded attorney fees in the amount of $1723 to defendants.

Thereafter, defendants filed a motion for summary judgment on Holland's remaining claims for relief. The trial court granted that motion.

I.

Holland claims that, by virtue of written and allegedly implied contracts, he had a property interest in his employment and that, therefore, his due process rights were violated when he was not given a pre-termination hearing. Holland also asserts that the commissioners breached his contract and that, therefore, the trial court erred in dismissing his breach of contract claims. Because our determination of these claims is based on the same analysis, we will consider them together.

In considering a motion to dismiss under C.R.C.P. 12(b)(5), a court must construe the allegations of the complaint strictly against the moving party and must consider the factual allegations of the opposing party's pleadings as true. Abts v. Board of Education, 622 P.2d 518 (Colo.1980).

When reviewing a motion for summary judgment, a party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.1987). Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

A property interest under both the federal and state constitutions exists only when a public employee has a legitimate claim of entitlement to continued employment under state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Adams County School District No. 50 v. Dickey, 791 P.2d 688 (Colo.1990). Sources of property interests include statutes, local ordinances, established rules or mutually explicit understandings, such as express or implied contracts. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Absent a property interest, a party may not have a legitimate claim for denial of due process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

A.

As support for his contentions, Holland directs us to certain provisions of his written contract, including language stating that "each party shall accordingly deal fairly and in good faith in carrying out the terms and conditions of this Agreement," "the parties are intending that this contract become a long-term employment relationship," and employment is pursuant to "other applicable policies and laws." We disagree with Holland's contentions.

Absent exceptions not applicable here, questions of contract interpretation are questions of law for the court. Radiology Professional Corp. v. Trinidad Area Health Ass'n, 195 Colo. 253, 577 P.2d 748 (1978).

The existence of a property interest in employment is, likewise, a question of law. Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir.1992).

In order to determine the intent of a contract, it must be construed as a whole and effect must be given to every provision, if possible. Colorado Interstate Gas Co. v. Chemco, Inc., 833 P.2d 786 (Colo.App.1991). Further, it is a basic principle of contract law that specific clauses of a contract control the effect of general clauses. Denver Joint Stock Land Bank v. Markham, 106 Colo. 509, 107 P.2d 313 (1940).

Here, several specific provisions of Holland's contract refer to his at-will employment status. For instance, one provision states that: "The term of this agreement shall be one year ... unless sooner terminated as provided herein." Further, another provision states that: "If the county fails to renew or determines to terminate the employment of Holland as County Attorney during the contract term ... the County agrees to pay Holland a lump sum cash payment...." Most importantly, the contract states that Holland's "employment may be terminated at any time with or without cause during the first year of this contract...."

These specific provisions of Holland's contract control over the general provisions cited by Holland. See Denver Joint Stock Land Bank v. Markham, supra. And, in construing these provisions in context with the entire contract, we conclude that a property interest was not created in Holland's employment by virtue of the express contract, since he was an employee at-will during his first, or probationary, year of employment. Moreover, we conclude that the trial court correctly dismissed the breach of contract claim, based on these express contract provisions.

The trial court here assumed all of the facts stated in Holland's affidavit to be true. Hence, it found there were no issues of material fact. We, likewise, have accepted all facts stated in Holland's affidavit as true. Accordingly, because no issue of material fact exists, we conclude that the trial court did not err in granting the Board's motion for summary judgment on these claims. See Mancuso v. United Bank, 818 P.2d 732 (Colo.1991).

B.

Holland argues that he had a property interest in his employment by virtue of oral assurances of job security made by certain Board members. In the alternative, Holland asserts that he had a property interest by virtue of receiving the Employee Handbook. He further contends that the asserted promises and the Handbook support his breach of contract claims. We again disagree.

Holland claims that one Board member assured him that "she would use her considerable influence to make sure that [he] would retain his position as County Attorney for a number of years and not be removed therefrom." Holland asserts that this Board member again assured him of job security and that either she or another Board member stated that "you're our lawyer" and that he would remain the County's lawyer. Holland finally claims that the personnel director gave him a copy of the Employee Handbook and stated that Holland was governed by its provisions.

"If an express contract exists and an asserted implied contract is alleged to co-exist and relate to the same subject matter, there can be no implied contract between the parties because the provisions of the express contract supersede those of the implied contract." Scott Co. v. MK-Ferguson Co., 832 P.2d 1000, 1002 (Colo.App.1991).

Here, the express contract stated that Holland's employment was at-will. This term of his contract, therefore, supersedes any subsequent oral assurances of job security, or any contrary Handbook provisions. See Scott Co. v. MK-Ferguson Co., supra.

Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987), relied upon by Holland, is not to the contrary. In Keenan, there was no express contract which provided for at-will employment and which further expressly delineated, as here, rights and remedies of a terminated employee. Moreover, we are unable to find any evidence in the record...