Elrod v. Harrisonville Cass R-IX School Dist.

• Decision Date: 14 January 1986
• Docket Number: R-IX,No. WD,WD
• Citation: 706 S.W.2d 465
• Parties: 31 Ed. Law Rep. 653 Max O. ELROD, Jr., Respondent-Appellant, v. HARRISONVILLE CASSSCHOOL DISTRICT, Appellant-Respondent. 36000.
• Court: Missouri Court of Appeals

Page 465

706 S.W.2d 465

31 Ed. Law Rep. 653

Max O. ELROD, Jr., Respondent-Appellant, v. HARRISONVILLE CASS R-IX SCHOOL DISTRICT, Appellant-Respondent.

No. WD 36000.

Missouri Court of Appeals Western District.

Jan. 14, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled and

Denied March 4, 1986.

Application to Transfer Denied

April 15, 1986.

George Allen Barton, Gregory M. Bentz, Kansas City, for appellant-respondent.

George Edward Kapke, Independence, for respondent-appellant.

Before PRITCHARD, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

The plaintiff Elrod, an assistant principal with teacher tenure in the Harrisonville Cass R-IX School District, brought a petition in three counts against the District. Count I was for breach of contract, Count II for violation of 42 U.S.C. § 1983, and Count III for fraud. The plaintiff presented evidence, and at the conclusion of the School District case, the court submitted Count I to the jury and directed a verdict against Count II and Count III. The jury returned a verdict of $50,000 on Count I, but the court reduced the award to $23,375 to conform to the prayer of the petition. The School District appeals from the judgment on Count I, and Elrod appeals the dismissal of Count II. The plaintiff does not contest the entry of adverse judgment on Count III, and that order is now final.

The plaintiff Elrod was employed by defendant School District for the first time during the 1978-1979 academic term. That stint was as a probationary teacher. He had been with the Hickman Mills School District the previous eight years. Elrod signed a contract as a permanent teacher with the defendant School District for the first time for the 1980-1981 school term. That year Elrod was assigned as assistant principal at the Harrisonville Junior High School. The law requires that an offer of contract to a teacher or administrator shall issue by the Board of Education by April 15 of the year, even though the official information as to projected revenues for school operation may not yet be at hand. To that end, Superintendent of Schools Cook, on February, 1981, wrote Elrod a letter of intent on behalf of the School District to reemploy Elrod for the 1981-1982 academic year. The letter expressed regret that the salary could not yet be stated "due to uncertainty in projected budget revenue and projected budget expenditures for the 1981-1982 school term"--but that a contract would issue as soon as that term could be determined.

The two, Elrod and Superintendent Cook, conferred that February to discuss the evaluation of the work that Elrod performed as assistant principal during the prior year. Dr. Cook expressed satisfaction with that performance and [as Elrod related] told Elrod to expect a five percent increment. Elrod asked "what other principals would be getting," and when informed a wage increase of ten percent, retorted to Cook: "I would like to have a ten percent raise." Cook promised to delve the matter, and then called back [so Elrod continued to relate] to say "that the ten percent would be okay." The School Board tendered a contract on April 13, 1981 which Elrod executed and returned. The instrument, which bore the caption: TEACHER INDEFINITE TERM EMPLOYMENT CONTRACT, provided for a ten and one-half months term of employment to commence on July 30, 1981 for an annual compensation of $23,375 with an additional stipend of $8 per week for out-of-district official travel. A term subjected the contract to modification or termination under the provisions of §§ 168.102 to 168.130, RSMo 1978 [Teacher Tenure Act]. Elrod was aware that the contract was subject to the effect of that enactment.

It became apparent to the Board of Education that the finances of the School District were strained and that reductions in the proposed budget for 1981-1982 would be necessary. The School District had incurred a cumulative deficit of more than $300,000 since the 1979 term, and moreover, the revenues anticipated from the state for year 1981-1982 were less than received for the prior school year. The assessment from the Cass County component of the District also augured a reduction in revenues. Accordingly, the Board acted to reduce the proposed budget by limits on programs, capital expenditures and the elimination of certain positions. The Board also acted to place a number of teachers on unrequested leaves of absence. On June 19, 1981, Superintendent of Schools Cook telephoned Elrod to advise that the Board had acted to place him on unrequested leave of absence. That advisement was confirmed to Elrod by letter. That letter informed Elrod that the action of the Board was taken under § 168.124 and was prompted by the "financial condition of the school district." Elrod was selected for enforced leave as assistant principal for yet another reason: the consolidation of the 9th grade into the senior high school had rendered an assistant principal superfluous at the junior high school where Elrod served. It was a prospect [Superintendent Cook related] disclosed to Elrod earlier at the evaluation conference in February, 1981.

The notice of the enforced leave from employment prompted Elrod to legal counsel and, then, in early July, to clarify to School District Personnel Director Brown that he was a tenured teacher and "should be offered a teaching position." Brown concurred, and informed Elrod "they would offer [him] a teaching position." That assessment of tenure was confirmed to Elrod by the School District some short time later, on July 6, 1981, by letter from Personnel Director Brown:

As you have been previously informed you have been placed on unrequested leave as an assistant principal for the 1981-1982 school year. You are however being offered a teaching position as a tenured teacher.

As I have discussed with you previously, should you decide to accept the position the salary would be at the appropriate experience and preparation step on the teacher salary schedule, not the salary for services as an assistant principal.

We must have your decision of acceptance or rejection in writing by July 21, 1981. [emphasis added]

In order to provide a position as teacher for Elrod, on July 16, 1981, the Board of Education placed probationary teacher Keyes on unrequested leave of absence.

The date for teachers to report was August 20, 1981, but despite explicit orientation Elrod reported for work on July 30, 1981 [the date specified in the original contract of April 13, 1981]--we assume, on advice of counsel. ¹ The wage tendered to Elrod, $18,775, was the sum allowed by column K, step 12 of the 1981-1982 Teacher Salary Schedule promulgated by the School District, and computed on the basis of qualifications and those other premises of increment the Salary Schedule denotes. Elrod refused the teacher assignment and did not report to work, but attempted employment elsewhere. The assistant principal position Elrod once occupied was never refilled.

The cause of action pleaded and submitted on Count I of the petition rests altogether on the premise that the contract tendered to Elrod on April 13, 1981, and accepted, to commence on July 30, 1981, for a term of ten and one-half months at the annual compensation of $23,375, was for employment as a teacher--that is, to teach. ² It is a premise, moreover, which assumes a consummated contract and tolerates no disagreement as to the terms. Thus, the cause of action was submitted to the jury in the form of MAI 26.02, a verdict director for the breach of a bilateral contract where the breach is the sole issue. The defendant School District argues that Count I was not submissible as a matter of law, but if submissible, was in dispute as to the terms of contract, as well as the breach.

The argument of the School District rests on the efficacy of § 168.124 of the Teacher Tenure Act, [a component of the April 13, 1981 contract] that

[t]he board of education of a school district may place on leave of absence as many teachers as may be necessary because of a decrease in pupil enrollment, school district reorganization or the financial condition of the school district

and the compliance with the proviso

In placing teachers on leave, the board of education shall be governed by the following provisions:

(1) No permanent teacher shall be placed on leave of absence while probationary teachers are retained in positions for which a permanent teacher is qualified. ³

Thus, the School District argues, the action to place Elrod on unrequested leave of absence as an assistant principal for Harrisonville Junior High School, prompted by financial exigency, was a termination of employment and nullification of contract within the express sanction of the statute, and the tender of employment to Elrod as a teacher, honored the proviso that no permanent teacher be enforced on leave while a probationary teacher retains position for which the tenured teacher qualifies. The School District concludes that the offer of contract to Elrod to replace probationer Keyes in the social studies department at the salary [$18,775] commensurate with his experience and preparation step as delineated on the School District teacher salary schedule was a full requital due Elrod under the law.

Elrod argues that § 168.124 of the Teacher Tenure Act appertains to a tenured employee of the School District and not to an employee--such as an assistant principal--without right or expectation to the position. Thus, the argument goes, Elrod could not be placed on unrequested leave of absence from the position of assistant principal, but could be consigned to such a furlough as a permanent teacher--but only on condition that no probationary teacher continued to retain a position for which Elrod, a tenured teacher, qualified to fill. The argument concludes: the School District did not comply with the statute when "it retained probationary teachers in positions Elrod was qualified to fill, [henc...