Atlanta Public Schools v. Diamond, A03A0092.

• Decision Date: 13 June 2003
• Docket Number: No. A03A0092.,A03A0092.
• Parties: ATLANTA PUBLIC SCHOOLS v. DIAMOND.
• Court: Georgia Court of Appeals

583 S.E.2d 500

261 Ga. App. 641

ATLANTA PUBLIC SCHOOLS v. DIAMOND.

No. A03A0092.

Court of Appeals of Georgia.

June 13, 2003.

Elarbee, Thompson, Sapp & Wilson, Brent L. Wilson, William A. Pinto, Jr., Atlanta, for appellant.

Theodore G. Frankel, Atlanta, for appellee.

MILLER, Judge.

Atlanta Public Schools (APS) refused to renew Margery Diamond's teaching contract and further refused to explain the reasons for the nonrenewal or to give her a hearing on the matter, despite Diamond's requests therefor. Diamond sued APS in superior court to compel APS to provide Diamond with a teaching contract for the next school year. Following two hearings (including at least one evidentiary hearing), the court ordered APS to provide Diamond with a teaching contract, $2,500 reimbursement in attorney fees, and costs. APS appealed; however, it failed to provide transcripts or adequate substitution for the appellate court to review. Absent those transcripts, we must affirm.

On March 15, 2002, APS notified Diamond that her annual teaching contract with the school system would not be renewed for the 2002-2003 school year. The letter gave Diamond the notice referenced in OCGA § 20-2-942(b)(2), informing her that she had a right to procedural safeguards, including the right to notice of the reasons for this action and the right to a hearing. The letter told Diamond that to exercise those rights, she should send, within 20 days, a letter via certified mail requesting such. Diamond sent such a letter on March 28. APS did not notify Diamond of the reasons for the nonrenewal, set up a hearing on the matter, or otherwise respond in any way to Diamond's letter.

Diamond sent a second letter on May 23, noting that under OCGA § 20-2-942(b)(2), APS was to have provided her a response containing the requisite information within 14 days of the March 28 request. She demanded that APS issue her a renewal contract immediately. Again, APS did not respond.

On June 18, Diamond sued APS in Fulton County Superior Court, asking that the court (i) order APS to provide her a contract for 2002-2003 and (ii) award her attorney fees for stubborn litigiousness and for causing her unnecessary trouble and expense. Diamond simultaneously moved for a temporary injunction to compel APS to provide the contract. The court scheduled a hearing on the motion for June 27.

The court held the hearing; however, what actually transpired at the hearing is unclear since no transcript of the hearing is in the appellate record. Indeed, at oral argument before this Court, APS conceded that the hearing was not reported.¹ The court apparently indicated it intended to rule in Diamond's favor, but before an order was filed, APS moved the court to reconsider the ruling, and a second hearing was held on July 3. Again, nowhere in the record is found a transcript of this hearing, during which the court (per APS's appellate brief) received live testimony. The court filed its "Final Order" in Diamond's favor that day, ordering APS to provide her with a 2002-2003 contract, to pay her $2,500 in attorney fees, and to pay all costs.

APS appealed this order by filing a notice of appeal that failed to include the information required by OCGA § 5-6-37. The notice did not designate those portions of the record to be omitted from the record on appeal, nor did it state whether any transcript of evidence or proceedings was to be transmitted as part of the appellate record. On appeal APS claims that the trial court erred by (1) deciding the matter even though Diamond had not exhausted her administrative remedies before bringing the action, (2) awarding injunctive relief even though adequate legal remedies were available to Diamond, (3) converting the temporary injunction motion into a summary judgment motion without providing APS 30 days notice, and (4) awarding attorney fees without the proper showing required by OCGA § 13-6-11. We will address these enumerations seriatim.

1. Citing Bacon v. Brewer, 196 Ga.App. 130, 395 S.E.2d 383 (1990), and Arp v. City of Bremen Bd. of Ed., 171 Ga.App. 560, 320 S.E.2d 397 (1984), APS argues that Diamond was required to exhaust her administrative remedies available under OCGA §§ 20-2-940, 20-2-942, and XX-X-XXXX before bringing an action to have her teaching contract renewed. Diamond counters that under Dalton City Bd. of Ed. v. Smith, 256 Ga. 394, 395(1), 349 S.E.2d 458 (1986), such administrative remedies are not available where the issue is the nonrenewal of an annual teaching contract.

Both parties misapprehend the law. OCGA § 20-2-942(b)(1) provides that the procedural safeguards of OCGA § 20-2-940 (such as a hearing before the local school board and reasons for dismissal) are available for tenured teachers, i.e., teachers who have accepted a school year contract for the fourth consecutive school year (or more) from the same local board of education. See Dorsey v. Atlanta Bd. of Ed., 255 Ga.App. 104, 105(1), 564 S.E.2d 509 (2002) ("Normally, a teacher must have held contracts for four consecutive school years in order to obtain tenure. OCGA § 20-2-942(b)(1)."). OCGA § 20-2-1160(a) grants local school boards the power to hear and determine "any matter of local controversy in reference to the construction or administration of the school law," which would include hearing challenges to a decision not to renew the contract of a tenured teacher. See Dalton City Bd. of Ed., supra, 256 Ga. at 395(1), n. 1,349 S.E.2d 458. The statute also provides that appeals from the local boards may be taken to the State Board of Education, and from there to the local superior court. OCGA § 20-2-1160(b), (c); see OCGA § 20-2-940(f).

Dalton City Bd. of Ed., supra, 256 Ga. at 395(1), 349 S.E.2d 458, however, makes it clear that the decision to not renew a nontenured teacher's contract would be more in the realm of school policy rather than school law and therefore would not constitute a "matter of local controversy in reference to the construction or administration of the school law" under OCGA § 20-2-1160(a). In other words, nontenured teachers whose contracts are not being renewed are not afforded the procedural safeguards of OCGA § 20-2-942(b) or the right to a hearing under OCGA § 20-2-1160 or § 20-2-940, and therefore need not exhaust these administrative remedies before bringing suit in superior court. See Dorsey, supra, 255 Ga.App. at 106(1), n. 2, 564 S.E.2d 509.

The question of whether Diamond was a tenured teacher, therefore, is critical in determining whether Diamond was required to exhaust the administrative remedies outlined in OCGA §§ 20-2-940, 20-2-942, and 20-2-1160. Although no evidence in the appellate record before us addresses this question, both parties at oral argument agreed that Diamond was a tenured teacher. Thus, she was undisputedly entitled to a hearing before the local board and to the reasons for her dismissal. OCGA § 20-2-940. APS and the local board (to whose superintendent the request was directed) prevented Diamond from obtaining a hearing, thereby frustrating her efforts to exhaust her statutory remedies by refusing within 14 days to respond to the March 28 request for such a hearing, even though such was required under OCGA § 20-2-942(b)(2). As the local board refused to hold the hearing to which Diamond would have been statutorily entitled, it would have been futile to attempt to appeal that refusal to the State Board of Education, since such appeals are confined to the record and presuppose a hearing was held. Therefore, Diamond's failure to exhaust futile administrative remedies would not bar a direct proceeding before the superior court.

2. APS claims that Diamond had an adequate remedy at law and therefore was not entitled to injunctive or other equitable relief. See OCGA § 9-5-1. "Equitable relief is improper if the complainant has a remedy at law which is adequate, i.e., as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity." (Citation and punctuation omitted.) Besser v. Rule, 270 Ga. 473, 475, 510 S.E.2d 530 (1999). APS argues that Diamond's adequate remedy at law was "reinstatement and/or back pay and benefits." See Lewis v. City of Atlanta, 274 Ga. 296, 297, 553 S.E.2d 611 (2001) (availability of reinstatement or monetary damages evinces that adequate remedies at law exist).

This adequate remedy at law is exactly what the trial court ordered. It ordered that Diamond be reinstated by requiring that APS provide her with a contract for the 2002-2003 school year. By reinstating her before any pay or benefits were lost, the court did not need to award her such. The court did not issue a temporary or interlocutory injunction; rather, it decided the case on the merits based on the evidence and argument presented at the hearings and entered final judgment in her favor, reinstating...