Dobervich v. Central Cass Public School Dist. No. 17

• Decision Date: 22 August 1979
• Docket Number: No. 9610,9610
• Citation: 283 N.W.2d 187
• Parties: Sam DOBERVICH, Plaintiff and Appellee, v. CENTRAL CASS PUBLIC SCHOOL DISTRICT NO. 17, a public corporation, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 187

283 N.W.2d 187

Sam DOBERVICH, Plaintiff and Appellee, v. CENTRAL CASS PUBLIC SCHOOL DISTRICT NO. 17, a public corporation, Defendant and Appellant.

Civ. No. 9610.

Supreme Court of North Dakota.

Aug. 22, 1979.

Chapman & Chapman, Bismarck, for plaintiff and appellee; argued by Daniel J. Chapman, Bismarck.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellant; argued by John D. Kelly, Fargo.

PEDERSON, Justice (on reassignment).

This is an appeal by the School Board from a judgment entered upon a jury verdict in favor of Dobervich, which awarded him $10,000 damages. The judgment is reversed and the case is remanded for further proceedings in accordance herewith.

Dobervich was employed as a teacher in the high school distributive education program by Central Cass Public School District No. 17 from 1973 until the spring of 1977. By letter dated March 21, 1977, the Board notified Dobervich that it contemplated nonrenewal of his contract because of:

1. Poor motivation of the low academic achiever.

2. Substandard student project work.

3. Student attitude shows reluctance rather than cooperation in the learning process.

After a special board meeting held pursuant to the provisions of § 15-47-38(5), NDCC, the Board determined not to renew Dobervich's contract for the 1977-1978 school year. Dobervich brought an action in the district court seeking (1) to restrain the Board from filling the position with another teacher, (2) to require the Board to issue him a renewal contract, or, in the alternative, (3) damages. He demanded a jury trial (Rule 38(b), NDRCivP).

The Board, in its answer, denied certain conclusions pleaded in the complaint, alleged that the position previously held by Dobervich had been filled, and included therein a motion to dismiss on the ground that the complaint failed to state a cause of action (Rule 12(b)(5), NDRCivP). The Board did not respond to the demand for jury trial. Dobervich did not press further for an injunction or mandamus order. The Board did not get a ruling on its motion to dismiss that was in the answer.

The suit was tried to a jury. When Dobervich rested his case, the Board made motions, in effect, as follows:

A. That the following issues be withdrawn from the jury:

(1) Whether or not the Board acted in bad faith (because it was not alleged);

(2) Whether or not the reasons for nonrenewal were frivolous and arbitrary and whether or not these reasons related to Dobervich's ability, competency and qualifications as a teacher;

(3) Whether or not the Board complied with the statutes with respect to providing an explanation, discussion and confirmation of the reasons for contemplated nonrenewal;

(4) Whether or not the Board gave serious consideration to the damage that could result to the professional stature and reputation of Mr. Dobervich in reaching the decision not to renew his contract; and

(5) Whether or not the process was handled with consideration and dignity, giving maximum consideration to basic fairness and decency.

B. For a directed verdict of dismissal under Rule 50, NDRCivP, on the grounds that:

(1) There was no evidence that the Board had not acted in good faith;

(2) All of the evidence and all inferences therefrom showed that the nonrenewal was neither frivolous nor arbitrary but that the reasons for nonrenewal directly related to Dobervich's ability, competency and qualifications as a teacher; and

(3) There was no evidence that would support a finding by the jury that the reasons for nonrenewal were not discussed, explained and confirmed.

The trial court denied the motion to dismiss and the motion to withdraw issues from the jury, stating: ". . . according to my understanding of the statutes and of the applicable case laws, particularly the so-called Baker case . . ." (Baker v. Minot Public School Dist. No. 1, 253 N.W.2d 444 (N.D.1977)). The Board then introduced very little additional evidence, rested, and again renewed its motions, which were again denied. Dobervich thereupon moved for a directed verdict on the issue of liability ". . . as a matter of law," and this motion was denied.

The case was then presented to the jury under instructions that were excepted to by the Board. The jury was not directed to return an advisory verdict. No special verdicts were requested. The jury returned a general verdict in favor of Dobervich and against the Board, and assessed $10,000 damages. Judgment was entered thereon, plus costs, and the Board appealed.

Other than those limited appeals authorized by § 15-53.1-32, NDCC, local school decisions are not appealable to the courts. This is not an appeal of an administrative determination and we must therefore distinguish our role and that of the trial court from that applicable in state agency appeals where the Administrative Agencies Practice Act (Ch. 28-32, NDCC) governs, as well as statutory appeals from local administrative determinations, such as from decisions of boards of county commissioners, § 11-11-39, NDCC. The law and precedent applicable here involves Chapters 32-05, 32-06 and 32-34, NDCC, and cases construing those statutes.

Dobervich brought this as an independent suit against the Board, seeking the equitable remedies, injunction and mandamus, and in the alternative, damages. Although, as in most opinions, there may be some language in Baker v. Minot Public School Dist. No. 1, supra, which may be ambiguous, the majority opinion treated the suit, which involved a nonrenewal and not a termination, as one in equity when it said, "Equity is not inflexible . . ." and "A lack of precedent is no obstacle to equitable relief . . .." Baker v. Minot Public School Dist. No. 1, supra, 253 N.W.2d at 451. The Baker majority opinion clearly considered the remedy of damages only available to Baker if circumstances made equitable relief impossible. See also, Rolland v. Grand Forks Public School District No. 1, 279 N.W.2d 889 (N.D.1979). The language in Baker, "The 1975 Legislative Assembly, by its amendments of § 15-47-38, N.D.C.C., has placed upon the courts of this State the responsibility of reviewing the decision of a school board when an appeal is taken . . . ," should not be considered authorization to appeal. School board decisions have not been made appealable by statute or otherwise.

The first issue that we must resolve is whether or not it was error for the trial court to permit the questioned issues to go to the jury. Recently, in Dorgan v. Kouba, 274 N.W.2d 167, 169 (N.D.1979), we said that Section 7 of the North Dakota Constitution preserves a trial by jury in all cases in which it could have been demanded as a matter of right at common law. For further authority on right to jury trial see Landers v. Goetz, 264 N.W.2d 459, 461 (N.D.1978); Ziebarth v. Kalenze, 238 N.W.2d 261, 267 (N.D.1976); Tower City Grain Co. v. Richman, 232 N.W.2d 61, 66 (N.D.1975); C. I. T. Corporation v. Hetland, 143 N.W.2d 94, 101 (N.D.1966); and Kelly v. Armbrust, 351 F.Supp. 869 (D.N.D.1972).

Even though one form of action has been substituted for actions at law and in equity, a distinction persists as far as the right to a jury trial is concerned. See 50 C.J.S. Juries § 23. This State has been more liberal than most in construing the guarantee of jury trial. See Lehman v. Coulter, 40 N.D. 177, 168 N.W. 724 (1918), and Annotation in 17 ALR3d 1321.

Generally, where both damages and an injunction are sought, the parties are entitled to a jury trial as to the damage claim unless the damage claim is merely incidental to and dependent on the right to an injunction. See 50 C.J.S. Juries § 35c, and Harkless v. Sweeny Independent School District,427 F.2d 319 (5th Cir. 1970). It was held in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), that where a statute creates legal and equitable remedies, actions to enforce statutory rights require jury trials if demanded, and that the right cannot be abridged by characterizing the legal claim as "incidental" to the equitable relief sought. It is elementary that there is no right to a jury trial of issues of law as distinguished from issues of fact. See 47 Am.Jur.2d, Jury, § 15. Ordinarily, if there is no conflict in the evidence, then the court is "compelled to withdraw the case from the jury's consideration." 47 Am.Jur.2d, Jury, § 15. This does not necessarily apply to advisory verdicts nor does it apply where there may be conflicting inferences from undisputed evidence. See Schatz v. Jerke, 199 N.W.2d 908 (N.D.1972), and cases cited therein which describe circumstances under which questions of fact may become questions of law. These are not the questions in this case.

This court said in Gresens v. Martin, 27 N.D. 231, 145 N.W. 823, 824 (1914):

"It has always been the province of the court in equity to determine issues of fact as well as of law; and, while the court may submit questions of fact to the jury, this is purely a matter of discretion, and the verdict in such cases is merely advisory."

Should the verdict in this case be considered advisory only? Rule 39(c), NDRCivP, provides:

"In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right."

In Sprenger v. Sprenger, 146 N.W.2d 36 (N.D.1966), although the action was equitable, this court said that with the consent of both parties the verdict had the same effect as if trial by jury had been a matter of right. See also, Bolyea v. First Presbyterian Church of Wilton, N. D., 196 N.W.2d 149 (N.D.1972).

Rule 52(a), NDRCivP, requires that:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon . . . ."

If there was "consent of...