Gardner v. Hollifield

Decision Date02 April 1975
Docket NumberNo. 11595,11595
Citation96 Idaho 609,533 P.2d 730
PartiesOrrin M. GARDNER, Plaintiff-Appellant, v. Gordon HOLLIFIELD et al., Defendants-Respondents.
CourtIdaho Supreme Court

Frank Benson, John Hjellum II, Jerry W. Korn, Boise, for plaintiff-appellant.

Frank Rettig, of Rettg & Fredericksen, Jerome, for defendants-respondents.

McFADDEN, Justice.

Plaintiff-appellant Orrin M. Gardner appeals from a district court order dismissing his complaint for failure to state a claim upon which relief can be granted. In his complaint, Gardner attempts to set forth two claims, one against the defendant-respondent board of trustees for failure to renew his teaching contract, and a separate claim against defendant-respondent John B. Campbell, district superintendent of schools, based upon Campbell's statement to the school board to the effect that Gardner was 'incompetent as a school teacher and was not doing a competent job.'

The following facts are among those alleged by Gardner in his complaint: He is a certified public school teacher, and he had been continuously employed by the school district from 1954 to 1971. As a result of his continuous employment as a teacher, he was entitled by statute 1 to have his teaching contract renewed. On or about, february 12, 1971, the defendant superintendent told the school board that Gardner was 'incompetent as a school teacher and was not doing a competent job,' which statement the superintendent 'well knew' to be false. Acting in accordance with the superintendent's recommendation, the school board voted to refuse to renew Gardner's contract (the specific time of this board action was not set out in the complaint). On or about February 26, 1971, the defendant superintendent directed Gardner's supervising principal to solicit Gardner's resignation; Gardner was advised by his principal that he would be in a much better position to obtain future employment with another school district if he were to resign than if he were to be discharged by the superintendent. Upon his principal's recommendation, Gardner signed a resignation form. On or before March 30, 1971, Gardner 'notified the defendants' in writing that he wished to withdraw his resignation. At the same time, Gardner asserted his statutory right to have his contract renewed.

The respondents filed a motion to dismiss for failure to state a claim upon which relief can be granted, and the district court entered a memorandum decision dismissing the complaint and giving Gardner 15 days to amend his complaint. It is from this dismissal that Gardner has appealed.

Upon a rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint must be viewed in the light most favorable to the plaintiff, it must be given the benefit of every reasonable intendment and every doubt must be resolved in its favor. Stewart v. Arrington Const. Co., 92 Idaho 526, 530-531, 446 P.2d 895 (1968); see Idaho Comm'n on Human Rights v. Campbell, 95 Idaho 215, 217, 506 P.2d 112 (1973); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1357 (1969). In other words, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Wackerli v. Martindale, 82 Idaho 400, 353 P.2d 782 (1960); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (s972) (per curiam); cf. I.R.C.P. 8(a) (calling for 'a short and plain statement of the claim showing that the pleader is entitled to relief').

A complaint is subject to dismissal under Rule 12(b)(6) when an affirmative defense appears on the face of the complaint itself. Stewart v. Arrington Const. Co., supra, 92 Idaho at 530, 446 P.2d 895; 2 A Moore's Federal Practice 8.28, p. 1863 (1974); 5 Wright & Miller, Federal Practice and Procedure: Civil §§ 1277, 1357 (1969). If an affirmative defense is not disclosed by the complaint itself, the defense may not be raised by motion to dismiss, except where 'matters outside the pleading are presented to and not excluded by the court,' in which case 'the motion shall be treated as one for summary judgment.' I.R.C.P. 12(b); see Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974); 2A Moore's, supra; 5 Wright & Miller, supra; Stewart v. Arrington Const. Co., supra, 92 Idaho at 531, 446 P.2d 895.

Under I.C. §§ 33-1212 (as it read in 1971), appellant Gardner, as a certificated employee, had 'the right to automatic renewal of contract by giving notice, in writing, of acceptance of renewal * * * to the board of trustees of the school district then employing (him) not later than the first day of April preceding the expiration of the term of the current contract.' In addition, the school board had a statutory obligation to notify Gardner by March 10 of his duty to accept renewal by April 1, unless by March 1 the board had notified him of its determination not to renew his contract. I.C. §§ 33-1212 and 33-1213 (prior to 1973 amendment). The respondents argue that Gardner's complaint itself shows that he had waived his right to automatic renewal or that he should be estopped from asserting it. Their position is that

'Plaintiff's pleadings show conclusively that at the critical time when the Board had opportunity to serve the notice and afford Plaintiff a hearing he chose to submit his resignation, in preference to standing on his rights under the tenure law, thereby lulling the Board into believing that he would not continue his services as a teacher in the system for the ensuing year.'

Waiver and estoppel are, of course, both affirmative defenses. I.R.C.P. 8(c). These defenses may be asserted by a 12(b)(6) motion to dismiss only when they appear on the face of the complaint itself. Sidebotham v. Robison, 216 F.2d 816, 829 (9th Cir., 1954) (estoppel); see Stewart v. Arrington Const. Co., supra, 92 Idaho at 530, 446 P.2d 895; 2 A Moore's, supra; 5 Wright & Miller, supra. We do not doubt that a teacher's resignation may result in a waiver of his rights under a tenure statute. See generally Annot., 145 A.L.R. 1078 (1943). But the question here is not whether the defenses asserted by respondent are viable but whether they appear on the face of the complaint.

In French v. Board of Education, 265 Cal.App.2d 955, 71 Cal.Rptr. 713 (Cal.App.1968), relied upon by respondents, a teacher first submitted a formal letter of resignation and then later attempted to withdraw his resignation. The trial court found that the teacher's attempted revocation was not timely made and that he was estopped. That case, however, was decided only after a trial on the issues, and did not involve the sufficiency of a complaint to state a claim for relief as in this case. See also, Fitzpatrick v. Welch, 96 Idaho 280, 527 P.2d 313 (1974). Turning to Gardner's complaint, we note that it does not indicate whether his resignation was accepted before he withdrew it or whether the school board relied upon his resignation in failing to send him the notice of nonrenewal required by I.C. § 33-1213. We therefore conclude that the asserted defenses of waiver and estoppel do not appear upon the face of the complaint itself; and hence, it was error to grant a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

We turn next to the dismissal of Gardner's claim against the superintendent for slander. The respondent contends, and the district court found, that Gardner's complaint discloses on its face that the school superintendent's allegedly defamatory statement to the school board was privileged. Whether or not the defense of privilege in a defamation case can be raised by a 12(b)(6) motion to dismiss depends upon whether or not an absolute privilege, as contrasted to a conditional privilege, appears on the face of the complaint. Garcia v. Hilton Hotels Int'l, 97 F.Supp. 5, 9 (D.P.R.1951); cf. Annot., 51 A.L.R.2d 552, 560-561 (1957); 50 Am.Jur.2d, Libel and Slander, § 437 (1970).

If the complaint discloses the existence of an absolute privilege, it is subject to dismissal under I.R.C.P. 12(b)(6); but if, on the other hand, the complaint discloses only a conditional privilege, it is not subject to dismissal under that rule. Garcia v. Hilton Hotels Int'l, supra; see Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953); Mundy v. McDonald, 216 Mich. 444, 185 N.W. 877, 20 A.L.R. 398, 402 (Mich.1921); cf. Olan Mills v. Enterprise Pub. Co., 210 F.2d 895, 897 (5th Cir., 1954); Drummond v. Spero, 350 F.Supp. 844, 845 (D.Vt.1972). 2 It is therefore necessary to determine whether Gardner's complaint itself discloses that the allegedly defamatory statement was absolutely privileged. As indicated above, the complaint alleges that the defendant school superintendent told the school board that Gardner was 'incompetent as a school teacher and was not doing a competent job.'

A cogent explanation of the distinction between the policy behind absolute and conditional privilege is found in the proposed text of the Second Restatement of Torts, wherein it is stated that:

'The 'privileges' created by law, irrespective of the consent of the person defamed, are of two classes, both of which are based upon a policy which treats the ends to be gained by permitting defamatory statements as outweighing the harm which may be done to the reputation of others.

"Privileges' of the first class are called 'absolute privileges' * * *. In reality these 'absolute privileges' are properly to be classified as immunities, since they are based upon the personal position or status of the actor. * * *. But * * * over a period of some centuries, these particular immunities always have been called 'privileges' by the courts when they arise in connection with defamation * * *.

'These 'absolute privileges' are based chiefly upon a recognition of the necessity that certain persons,...

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28 cases
  • Berian v. Berberian
    • United States
    • Idaho Supreme Court
    • 2 Noviembre 2020
    ...privilege may be "lost where it is abused as, for example, where the statements are not made in good faith." Gardner v. Hollifield , 96 Idaho 609, 614, 533 P.2d 730, 735 (1975) (quotation omitted).A majority of states have held that such statements to law enforcement officials enjoy only a ......
  • Dickinson Frozen Foods, Inc. v. J.R. Simplot Co.
    • United States
    • Idaho Supreme Court
    • 22 Abril 2019
    ...to dismissal under Rule 12(b)(6) when an affirmative defense appears on the face of the complaint itself." Gardner v. Hollifield, 96 Idaho 609, 611, 533 P.2d 730, 732 (1975); Hammer v. Ribi, 162 Idaho 570, 575, 401 P.3d 148, 153 (2017). And while it is true the district court needed to cons......
  • Dickinson Frozen Foods, Inc. v. J.R. Simplot Co.
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    • Idaho Supreme Court
    • 13 Febrero 2019
    ...to dismissal under Rule 12(b)(6) when an affirmative defense appears on the face of the complaint itself." Gardner v. Hollifield , 96 Idaho 609, 611, 533 P.2d 730, 732 (1975) ; Hammer v. Ribi , 162 Idaho 570, 575, 401 P.3d 148, 153 (2017). And while it is true the district court needed to c......
  • Paslay v. A&B Irrigation Dist.
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    • Idaho Supreme Court
    • 29 Noviembre 2017
    ...claim that would entitle him to relief.’ " Taylor v. Maile , 142 Idaho 253, 257, 127 P.3d 156, 160 (2005) (quoting Gardner v. Hollifield , 96 Idaho 609, 611, 533 P.2d 730, 732 (1975) ). A Rule 12(b)(6) motion to dismiss in which "matters outside the pleadings are presented to and not exclud......
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1 books & journal articles
  • Commercial Disparagement and Defamation
    • United States
    • ABA Antitrust Library Business Torts and Unfair Competition Handbook Business tort law
    • 1 Enero 2014
    ...in that the speaker’s motive, purpose or reasonableness in uttering a false statement do not affect the defense”); Gardner v. Hollifield, 533 P.2d 730, 733-34 (Idaho 1975) (exploring policy considerations behind absolute and conditional privileges); Vigoda v. Barton, 204 N.E.2d 441, 445 (Ma......

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