Goodman v. Bethel School Dist. No. 403

• Decision Date: 25 July 1974
• Docket Number: No. 42696,42696
• Citation: 524 P.2d 918,84 Wn.2d 120
• Parties: Barbara GOODMAN, Appellant, v. BETHEL SCHOOL DISTRICT NO. 403, a municipal corporation, Respondent.
• Court: Washington Supreme Court

Page 120

84 Wn.2d 120

524 P.2d 918

Barbara GOODMAN, Appellant, v. BETHEL SCHOOL DISTRICT NO. 403, a municipal corporation, Respondent.

No. 42696.

Supreme Court of Washington, En Banc.

July 25, 1974.

J. Benedict Zderic, Tacoma, for appellant.

Kane, Vandeberg & Hartinger, Elvin J. Vandeberg, Tacoma, for respondent.

STAFFORD, Associate Justice.

Barbara Goodman appeals from a decision of the trial court affirming the nonrenewal of her teaching contract for 1972--73 by respondent Bethel School District No. 403. Respondent has cross-appealed an award to appellant of attorney's fees and costs.

Appellant was employed as a certified teacher by respondent. On January 31, 1972, she was notified she had been placed on probation. April 11, 1972, respondent's board of directors determined that probable cause existed for the nonrenewal of appellant's teaching contract for 1972--73.

By letter dated April 12, 1972, appellant was given notice of probable cause for nonrenewal of her teaching contract following which she requested and received an open hearing before respondent's board. Evidence received at the hearing was fully reported.

After hearing the evidence and argument of counsel, the board made a finding of fact which provided: 'BARBARA GOODMAN during the 1971--72 school year did not establish and maintain such appropriate control over her classroom as is necessary to effective student learning and did not control classroom activities to the extent necessary to assure that the work of individuals and groups in the classroom was orderly and effective.' The board also found that the criteria by which appellant's performance was judged was a part of respondent district's policy handbook which had been negotiated by the Bethel Education Association, as bargaining representative for the certified staff. Finally, the board determined sufficient cause existed for nonrenewal of appellant's teaching contract for the 1972-73 school year. Appellant filed notice of appeal to the superior court pursuant to RCW 28A.58.460.

Respondent filed a verbatim transcript of the evidence (hereinafter called a statement of facts) as well as the papers and exhibits relating to the board's decision. This was done pursuant to RCW 28A.58.470, Accord Hattrick v. North Kitsap Sch. Dist. 400, 81 Wash.2d 668, 504 P.2d 302 (1972). Thereafter, appellant moved for a 'trial do novo' by the superior court, which she asserts was required by RCW 28A.58.480. ¹ She also moved to have the superior court exclude, from its use or consideration, the statement of facts filed by the board.

The trial court denied appellant's motion to exclude as evidence testimony taken before the board. Rather, it devised rules of procedure concerning its use:

1. The testimony of witnesses who testified before the board would be accepted if they were present in court, were sworn, and informed the court that they had read the prior testimony and would testify in the same manner, or would change their testimony in some specific way.

2. Both counsel would be given an opportunity to introduce further testimony by the witnesses and to cross-examine them on testimony given before the board as well as on the testimony before the court.

Appellant was permitted to, and did, call witnesses who had not appeared before the board.

A substantial portion of the evidence used by respondent at the superior court hearing was presented in accordance with the foregoing procedure. After the hearing, the trial court made findings of fact and conclusions of law which supported respondent's nonrenewal of appellant's contract. That portion of the judgment from which Barbara Goodman appeals affirmed respondent. The judgment also ordered respondent to pay appellant $500 as reasonable attorney's fees together with the taxable costs in superior court. Respondent appeals from the latter portion of the judgment.

First, appellant contends the trial court erred by denying her motion challenging the sufficiency of respondent's evidence at the close of respondent's case. We do not agree. After the motion was denied appellant elected to continue with the trial and produced evidence in her own behalf. Having made such an election, she cannot predicate error upon the denial of her motion for dismissal. Jones v. Bard, 40 Wash.2d 877, 880, 246 P.2d 831 (1952); See also State v. Reader's Digest Ass'n, 81 Wash.2d 259, 265, 501 P.2d 290 (1972).

Next, appellant assigns error to two conclusions of law and the judgment based thereon. The conclusions of law, Nos. 2 and 3, as set forth in the brief, read as follows:

'The respondent has established by a preponderance of the evidence that sufficient cause existed to non-renewal the teaching contract of the appellant for the 1971--1972 school year.' ²

'The respondent is entitled to entry of a judgment affirming the decision of the Board of Directors that the teaching contract of the appellant not be renewed for the 1972--1973 school year.' ³

In considering the assigned error we must consider the status of the trial court's findings of fact. First, appellant seems to argue that the statement of facts contains evidence which, if considered by the trial court, could have caused the court to reach a different result. However, she has not assigned error to the trial court's failure to make findings of fact supportive of her position. We will not consider alleged error unless it is set forth in an assignment of error. ROA I--43. Second, during oral argument appellant challenged the trial court's reliance on certain evidence contained in the statement of facts. However, she has assigned no error to the court's admission of any specific evidence either as to particular persons, subject matter, or any alleged evidentiary violations such as hearsay. Further, she does not allege the use of improper criteria by the board (or the court) in ordering the nonrenewal of her contract. ROA I--43 prevents our further consideration of the subject. Finally, appellant has not assigned error to any finding of fact entered by the trial court. Thus, it is unnecessary to determine whether there is substantial evidence to support the findings. They are the established facts of the case. ROA I--43; West Coast Airlines Inc. v. Miner's Aircraft & Engine Serv., Inc., 66 Wash.2d 513, 403 P.2d 833 (1965); Weiss v. Weiss, 75 Wash.2d 596, 452 P.2d 748 (1969). As matters stand, then, we are concerned only with whether the challenged conclusions of law are supported by the findings of fact. Browning v. Browning, 46 Wash.2d 538, 283 P.2d 125 (1955); Knight v. Bishop, 51 Wash.2d 353, 318 P.2d 323 (1957); Ebenezer A.M.E. Zion Church v. Corporate Loan & Sec. Co., 72 Wash.2d 128, 432 P.2d 291 (1967).

The pertinent unchallenged findings of fact read as follows:

8. Dr. John Amend visited the classroom of the appellant on four different occasions between February 1, 1972 and April 15, 1972, for the purpose of assisting the appellant in improving her teaching ability. During these visits, the appellant displayed an unawareness of the activities of the students in her classroom except for the immediate group with which she was working, and she did not establish and maintain such appropriate control over her classroom as the Court finds to be necessary to effective student learning and to assure that the work of individuals and groups in the classroom was orderly and effective.

9. The appellant, by her own testimony, admitted that she did not have her classroom under control and that her planning was not adequate on occasions.

10. The respondent has established a preponderance of the evidence that sufficient cause existed for the non-renewal of the teaching contract of the appellant for the 1972--73 school year.

The foregoing findings of fact support conclusions of law 2 and 3.

Next, appellant claims error because the trial court used 'out of court transcribed testimony . . . over appellant's objection.' We find no error. This assignment of error brings into play an offshoot of the rule just discussed at length. Where a case has been tried to the court, In the absence of errors assigned to the trial court's findings of fact pursuant to ROA I--43, this court will not review errors claimed in the admission of evidence. Simpson v. Hutchings, 41 Wash.2d 287, 248 P.2d 572 (1952). As we said in Kitsap County Bank v. United States Fid. & Guar. Co., 90 Wash. 12, 18, 155 P. 411, 413 (1916):

All evidence Admitted, whether properly or improperly, is merged in the court's findings. Exceptions to the admission of evidence cannot cure the failure to except to the findings based thereon. Obviously the failure to except to the findings waives the exception to the admission of evidence.

(Final italics ours.) Hutchings recognized that Kitsap dealt with the failure of appellant to follow a rule regarding Exceptions to findings of fact which had the ultimate effect of excluding them from appellant review whereas Hutchings was concerned with a failure to properly assign Error to findings which excluded them from consideration. Nevertheless, we held in Hutchings, 41 Wash.2d at page 290, 248 P.2d at page 574, 'the basic rule of the Kitsap case, Supra, is strongly applicable by analogy in the instant case. That is, where the findings are not before the court--and, consequently, they are taken as verities--We cannot review alleged error in the admission of evidence upon which such findings were based.' (Final italics ours.) See also Jones v. Bard, Supra.

Finally, appellant contends the trial court committed error by denying her motion for a 'trial de novo.' It is appellant's position that upon appeal of the board's decision she was entitled to a completely 'new trial' covering the whole case, without reference to the statement of facts filed by the board. It is urged that the trial court's use of the statement of facts, under its procedural rules, denied her the 'trial de novo' authorized by RCW 28A.58.480. We do not agree....