Cahill v. Board of Educ. of City of Stamford

• Court: Connecticut Supreme Court
• Writing for the Court: ARTHUR H. HEALEY
• Citation: Cahill v. Board of Educ. of City of Stamford, 502 A.2d 410, 198 Conn. 229 (Conn. 1985)
• Decision Date: 31 December 1985
• Parties: , 29 Ed. Law Rep. 655 Eileen CAHILL v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

Page 410

502 A.2d 410

198 Conn. 229, 29 Ed. Law Rep. 655

Eileen CAHILL v. BOARD OF EDUCATION OF the CITY OF STAMFORD et al.

Supreme Court of Connecticut.

Argued Oct. 11, 1985

Decided Dec. 31, 1985.

Eileen Cahill, pro se, and Davis W. Ganim, with whom was David J. Laudano, Stratford, for appellant (plaintiff).

Beverly J. Hodgson, Bridgeport, for appellees (defendants).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Associate Justice.

This case, which involves the termination of a tenured teacher, was the subject of an earlier appeal to this court. Cahill v. Board of Education, 187 Conn. 94, 444 A.2d 907 (1982). The appeal presently before us challenges the trial court's, Gerety, J., judgment in favor of the defendants which dismissed count three of the plaintiff's complaint for lack of subject matter jurisdiction.

In a jury trial in 1980 on counts one, two, and four of her complaint, the plaintiff received a general verdict awarding her damages of over $24,000, approximately equal to her salary for the 1970-71 school year plus interest. The trial court, Zarrilli, J., accepted the jury's general verdict and denied the plaintiff's request for an injunction requiring the defendants to reinstate her in her teaching position. In the earlier appeal by the plaintiff, in which the defendants cross appealed, the trial court's decision was affirmed. Cahill v. Board of Education, supra.

The plaintiff was a former tenured science teacher employed by the Stamford board of education ¹ before leaving on a sabbatical for the 1969-70 school year. Upon her return to the Stamford school system, the plaintiff and the defendants were unable to agree on a suitable teaching position. "Following protracted negotiations during the 1970-71 school year concerning her employment, the plaintiff filed suit in March 1971...." Cahill v. Board of Education, supra, 96, 444 A.2d 907. The action, as originally instituted in 1971, did not include the third count now before us, but that count was added thereafter by way of amendment in 1972. That action was later nonsuited in 1974 and the plaintiff instituted the present action in 1975. In June, 1971, the board provided the plaintiff with a notice of the proposed termination of her contract. In July, 1971, upon a request from the plaintiff's attorney, the board provided the plaintiff with a written statement of reasons for the proposed termination. ² The board voted to terminate her employment on August 3, 1971. The plaintiff did not timely file a request for a hearing on the proposed termination and she did not file an appeal within thirty days of the board's final decision terminating her employment, as then provided in General Statutes § 10-151(f).

After her 1971 action was nonsuited, the plaintiff filed a complaint in 1975 which contained four counts including the third count now before us. At the beginning of the plaintiff's trial in 1980, the trial judge, Zarrilli, J., severed count three of the complaint and thus removed it from the jury's consideration. The plaintiff claims that count three alleges a cause of action in libel and slander and the unlawful invocation of the tenure act, i.e., General Statutes § 10-151. ³

On April 24, 1984, the defendants moved for summary judgment on count three which remained on the trial list after the 1980 verdict on the other three counts. The defendants claimed in that motion that the issues raised by count three "were fully litigated in the previous trial of the case and/or that count three does not state a cognizable cause of action." The motion for summary judgment was denied on May 18, 1984, by the trial court, Berdon, J., and the memorandum of decision stated that the "third count is not barred under the doctrine of res judicata."

The plaintiff raises five issues on appeal. She alleges that the trial court erred (1) in concluding that the defendants lawfully invoked General Statutes § 10-151; (2) in concluding that it was not bound by the statements of the memorandum of decision denying the motion for summary judgment; (3) in dismissing count three for lack of subject matter jurisdiction; and (4) in failing to find that the plaintiff was not required to attend a hearing before the board because it was biased. The plaintiff, in her fifth issue, asks this court to consider whether the word "may" in General Statutes § 10-151(b) (twenty-day period in which to request a hearing) can be directory and not mandatory despite the plaintiff's admitted failure to raise this issue at the trial level. ⁴ We find no error.

On June 8, 1984, the defendants filed a motion to dismiss ⁵ the third count of the plaintiff's complaint "because [the Superior] Court is without subject matter jurisdiction and the defendants are immune." After hearing the parties, the court, Gerety, J., granted the motion for lack of subject matter jurisdiction. The trial court rejected the plaintiff's claim that General Statutes § 10-151 was improperly invoked by the defendants, pointing out that that statute sets out "the whole procedure concerning what is to be done when a teacher is notified that the Board of Education is considering a termination for cause." In granting the motion, the court discussed the plaintiff's claimed failure to exhaust her administrative remedies under General Statutes § 10-151, stating that "[o]n that ground alone, failure to exhaust the administrative remedy which was available under the third count and not followed, the court believes that judgment ought to enter in favor of the defendants...." It went on to state that "more important, the procedure is a statutory one and unless it is followed there is no appeal from it to the court. If that procedure is not followed and there is no right to proceed to the courts, then the court lacks jurisdiction over the subject matter of the proceeding." It thereupon concluded that the court lacked jurisdiction to proceed on the third count.

The third count has been referred to by the plaintiff as one setting forth not only a cause of action based on the unlawful invocation of the tenure law; General Statutes § 10-151; by the defendants but also as one sounding in libel and slander. The defendants assert that the third count cannot be characterized as one alleging either libel or slander, but rather is really an attempt to appeal her termination as a teacher after she failed to take timely advantage of the statutory proceedings in § 10-151.

At the hearing on the motion to dismiss, the plaintiff said: "The question before this Court in Count Three is whether or not the defendants had the right to invoke the tenure law [General Statutes § 10-151]." ⁶ The gravamen of her claims on appeal flows from this position. She claims that this issue presents a factual question for a jury and not one of law for the court.

The thrust of the plaintiff's unlawful invocation claims implicates her sparsely briefed characterization of the third count ⁷ as sounding in libel and slander. In any event, "[t]he interpretation of pleadings is always a question of law for the court [ Guiel v. Barnes, 100 Conn. 737, 743, 125 A. 91 (1924) ]...." Hendrie v. Hendrie, 7 Conn.Sup. 186, 190 (1939). We have pointed out that "[t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. Price v. Bouteiller, 79 Conn. 255, 64 Atl. 227 [1906]. But essential allegations may not be supplied by conjecture or remote implication. [Price v. Bouteiller, supra.]" (Emphasis added.) Preleski v. Farganiasz, 97 Conn. 345, 348, 116 A. 593 (1922). Examination of the allegations of the third count discloses that it does not include allegations essential to a cause of action in either libel or slander. See, e.g., Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 477 A.2d 1005 (1984); Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955); Hassett v. Carroll, 85 Conn. 23, 81 A. 1013 (1911); see also Barry v. McCollom, 81 Conn. 293, 70 A. 1035 (1908); annot., 40 A.L.R.3d 490. Asserting that this count does sound in libel or slander, the plaintiff refers to such a characterization by the court, Zarrilli, J., at the 1980 jury trial as well as to a later such characterization by the court, Berdon, J., in passing upon the defendants' motion for summary judgment.

At the hearing before Judge Gerety, the plaintiff reminded him that Judge Zarrilli had refused to let the third count go to the jury. ⁸ The judge expressed his agreement with that ruling even though he was not bound thereby. See generally Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). Another judge, Berdon, J., in denying the defendants' motion for summary judgment, had indicated that the allegations of the third count "raise the issues of libel and slander and the defendants' invocation of the statute (§ 10-151(b)) for dismissal for cause for the ulterior purpose of injuring her professional reputation." ⁹ Judge Berdon, in considering the two grounds on which summary judgment was sought, concluded that the plaintiff had a constitutional right to have "these issues decided by a jury." Judge Berdon did not have before him under that motion and, therefore, did not pass upon a claim of either subject matter jurisdiction or the attendant claim of failure to exhaust an administrative remedy. Both of these grounds, however, were later addressed by Judge Gerety who also was not bound by the decision of Judge Berdon. In any event, jurisdiction of the subject matter...