Bowman v. Board of Regents of Universities and State Colleges of Arizona, 1

• Decision Date: 21 September 1989
• Docket Number: CA-CV,No. 1,1
• Citation: 162 Ariz. 551,785 P.2d 71
• Parties: , 58 Ed. Law Rep. 312 Eldon G. BOWMAN, Plaintiff-Appellant, Cross-Appellee, v. BOARD OF REGENTS OF the UNIVERSITIES AND STATE COLLEGES OF ARIZONA, and Eugene M. Hughes, individually and in his capacity as President of Northern Arizona University, Defendants-Appellees, Cross-Appellants. 88-300.
• Court: Arizona Court of Appeals

Page 71

785 P.2d 71

162 Ariz. 551, 58 Ed. Law Rep. 312

Eldon G. BOWMAN, Plaintiff-Appellant, Cross-Appellee, v. BOARD OF REGENTS OF the UNIVERSITIES AND STATE COLLEGES OF ARIZONA, and Eugene M. Hughes, individually and in his capacity as President of Northern Arizona University, Defendants-Appellees, Cross-Appellants.

No. 1 CA-CV 88-300.

Court of Appeals of Arizona Division 1, Department A.

Sept. 21, 1989.

Reconsideration Denied Nov. 7, 1989.

Review Denied Jan. 30, 1990.

[162 Ariz. 552] Venable & Randall by Gilbert T. Venable and Marton & Hall, P.A. by Kraig J. Marton, Phoenix, for plaintiff-appellant, cross-appellee.

Mangum, Wall, Stoops & Warden by A. Dean Pickett and Stephen K. Smith, Flagstaff, for defendants-appellees, cross-appellants.

OPINION

JACOBSON, Presiding Judge.

The primary issue in this appeal from summary judgment is whether Eldon G. Bowman abandoned his employment contract with Northern Arizona University as a matter of law by not returning a signed contract within a designated time. Subsidiary issues include whether this court has jurisdiction, in absence of a cross-appeal, of an issue raised by appellees as a "cross-issue" dealing with the trial court's setting aside a judgment dismissing the lawsuit for failure to prosecute. We find that there are disputed issues of material fact relative to abandonment and reverse the judgment of the trial court. We do not consider whether the trial court erred in setting aside the dismissal because the Board of Regents did not file a cross-appeal on that issue.

FACTS

This case has a lengthy and complex history, including a prior appeal to this court. Bowman v. Board of Regents, 1 CA-CIV 7628 (memorandum decision filed Dec. 17, 1985). The pertinent facts are as follows.

Bowman was a tenured faculty member at Northern Arizona University. In connection with his duties as chair of a faculty committee, he suspected improper management of faculty funds by administration officials and made various attempts to expose what he perceived to be possible wrongdoing. During the course of a formal evaluation of Bowman's performance as a faculty member, his faculty peers and students gave him an evaluation rating that would have entitled him to a merit pay increase for the 1981-82 academic year. The administration, however, reduced his rating by two categories to a deficiency rating without a merit pay increase.

Bowman objected to the evaluation and requested a hearing on the matter. On May 11, 1981, the university sent Bowman a proposed contract for the following academic year that did not include a merit pay increase because of the administration's prior evaluation of his job performance. After receiving the proposed contract, Bowman wrote to President Eugene M. Hughes, stating in part:

I want to challenge the evaluation by my department chairman as unfair and arbitrary ...

I request use of the regular University channels and procedures provided for such challenges; that I be informed of those procedures; that I be informed of the particulars of my ratings; and that my 1981-82 contract offer be held in abeyance until the review of my challenge has been completed. My request to Dean Little, dated April 22, 1981, is attached; I have received no response.

Not having received a response, Bowman again wrote to President Hughes:

I expect to hear from you at your early convenience concerning my challenge to my 1980-81 faculty rating. I have not returned my 1981-82 contract pending the resolution of the challenge.

My intention is to continue my professional work at the university in the fall.... However, since my 1981-82 contract is contingent on my performance evaluation for 1980-81, it would seem proper to review the evaluation before completing the contract.... I trust the matter will be taken up shortly.

On July 10, 1981, President Hughes replied in a letter to Bowman:

Please excuse my tardiness in responding to your letter of May 29th. I did request that Dr. Cotera follow-up on the hearing that you requested but have just learned that he did not do so....

At this point I do want to indicate to you that I have asked Dr. Joseph Cox, Vice President for Academic Affairs, to move immediately to provide you with an appropriate hearing regarding your evaluation for the 1980-81 academic year. We will hold your 1981-82 contract in abeyance pending the resolution of the challenge.

(Emphasis added.)

No hearing was held. However, the matter was reviewed by Dr. Cox. Dr. Cox wrote to Bowman on August 6, 1981, indicating that he was recommending to President Hughes that Bowman's "merit evaluation ... be changed from Category IV to Category III (satisfactory--without merit adjustment)."

On August 19, 1981, Dr. Cox wrote Bowman, advising him that the 1981-82 contract had to be signed and returned no later than Friday, August 21, 1981, at 3:00 p.m. Bowman responded to Dr. Cox's letter on August 20 by stating:

... in answer to your statement that you have no alternative but to assume that I do not intend to return to my position at the University. The assumption is incorrect. The President has my assurance, in a letter he received some time ago, that I intended to continue my work at the University this fall term, giving the administration ample time to conduct a fair review. I have so acted, participating in all my duties and departmental functions, even before the date specified by contract, have continued to this moment, and will continue to work until removed or forced out.

On August 20, 1981, another letter from Dr. Cox was hand-delivered to Bowman. This letter provided in part that:

Because of the requirements of law, and the necessity on the part of the University to insure continuity of instruction in your department, my requirement that your signed employment contract be returned to the Office of the President by Friday, August 21, 1981, by 3:00 p.m., stands. There is no other method permitted by State law for you to continue in the employment of Northern Arizona University, and we will deem your position to be abandoned in the absence of the return of your contract by that deadline.

Bowman received Dr. Cox's letter before the deadline but did not return the contract. On August 23, 1981, Bowman received a letter from Dr. Cox advising that Bowman could neither resume his duties nor appear in the classroom because he had failed to comply with the requirements of signing a written contract.

On August 24, 1981, President Hughes advised Bowman that he was considered to have abandoned his employment with N.A.U. and that he was not considered to be a faculty member. This decision was affirmed by the Board of Regents on December 12, 1981.

Bowman filed suit in federal district court based on 42 U.S.C. § 1983, the United States Constitution, and state contract law contending, as he contends here, that his termination at the university was in retaliation for his exercise of the right of freedom of speech in reporting the improper management of faculty funds and was therefore unconstitutional. The district court granted summary judgment in favor of defendants without comment and the decision was affirmed following an appeal to the ninth circuit. Bowman had at the same time also filed a complaint for breach of contract in state superior court. Following the federal court action, the superior court judge entered summary judgment against Bowman based on the doctrine of res judicata. That judgment was appealed to this court, which held that because the district court did not have to consider the merits of the contract claim in order to reach its decision, res judicata was not applicable to the state court action. Therefore, this court reversed summary judgment and remanded to the trial court for further proceedings. Bowman, 1 CA-CIV 7628.

After remand, the Board of Regents and President Hughes again moved for summary judgment. [Hereinafter defendants will be referred to as the board unless the context requires a separation of the parties' respective interests.] Judge Jeffrey Cates denied the motion on grounds that the doctrine of promissory estoppel, as defined in Restatement (Second) of Contracts § 90 (1981) (§ 90), provided a potential basis for submission of the case to a factfinder. The board's motion for reconsideration was heard by Judge Norman D. Hall, Jr., because Judge Cates had been assigned to the criminal division. Judge Hall rejected the application of § 90 and determined that given the undisputed, material facts, Bowman had willfully abandoned his employment with Northern Arizona University as a matter of law. Thus, almost six years after this contract dispute arose, the court entered final judgment on March 28, 1988, and Bowman timely appealed to this court. The board filed a cross-appeal from the trial court's denial of its request for attorney's fees.

MOTION FOR RECONSIDERATION

Bowman first argues that Judge Hall's order constituted an improper "horizontal appeal" of Judge Cates' previous order. The rule is well established that a trial court judge should not reconsider a motion previously decided by another trial court judge unless new circumstances justify a fresh examination. Chanay v. Chittenden, 115 Ariz. 32, 34, 563 P.2d 287, 289 (1977); Union Rock & Materials Corp. v. Scottsdale Conference Center, 139 Ariz. 268, 272, 678 P.2d 453, 457 (App.1983). Therefore, Arizona appellate courts have been highly critical of an attempt to bring the same motion before different superior court judges in the hope of finding one who will make a favorable ruling. See, e.g., Mozes v. Daru, 4 Ariz.App. 385, 389, 420 P.2d 957, 961 (1966). However, the record in this case indicates that the board's motion for reconsideration was not an attempt to bring such an impermissible "horizontal appeal."

Judge Cates' denial of summary judgment was based on his conclusion that because of the applicability of § 90, Restatement (Second) of Contracts, factual issues...