Grantham v. Rockhurst University, 29255

• Decision Date: 27 February 1978
• Docket Number: No. 29255,29255
• Citation: 563 S.W.2d 147
• Parties: Joseph GRANTHAM, Appellant, v. ROCKHURST UNIVERSITY, Maurice Van Ackeren and James Blumeyer, Respondents.
• Court: Missouri Court of Appeals

Page 147

563 S.W.2d 147

Joseph GRANTHAM, Appellant, v. ROCKHURST UNIVERSITY, Maurice Van Ackeren and James

Blumeyer, Respondents.

No. 29255.

Missouri Court of Appeals, Kansas City District.

Feb. 27, 1978.

Arthur A. Benson, II, John E. McKay, Kansas City, for appellant.

Thomas M. Sullivan, Eileen S. Sullivan, Downey, Sullivan & Fitzgerald, Kansas City, for respondents.

Before SHANGLER, P. J., WASSERSTROM, J., and MASON, Special Judge.

DONALD L. MASON, Special Judge.

Our review of this court tried case is dictated by Rule 73.01(3) as explicated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). By that case, l.c. 32, we are admonished "that the decree or judgment of the trial court will be sustained . . . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." We affirm.

By letter contract signed May 10, 1969, Joseph M. Grantham (appellant) was hired by Rockhurst University (respondent) as assistant basketball coach, baseball coach and instructor in the Physical Education Department for the 1969-70 academic year. His contract was renewed for successive academic years; and for the 1971-72 academic year he attained the stature of Assistant Professor, which he retained throughout his remaining employment with respondent, as well as being coach. Throughout his employment appellant performed five to seven hours of classroom instruction per week, plus preparation, and the remainder of his time was expended in his coaching duties. Commencing with his letter contract dated March 14, 1971, for the 1971-72 academic year, defined portions of the Faculty Handbook dated September 1, 1970, were incorporated into that, and subsequent, contracts. On March 24, 1975, appellant signed his seventh consecutive employment contract for the academic year 1975-76. On June 4, 1975, respondent, through its academic dean, Father Blumeyer, advised appellant by letter that the contract which he signed for the 1975-76 academic year would be his terminal contract and offered him the option of tendering his resignation effective at the end of the school year or to terminate that contract either prior to the beginning of the school year or at mid-year. Appellant having failed to take affirmative action on these options within the time limits established, Father Blumeyer formally advised appellant on June 13, 1975, that the existing contract would be the terminal contract. This procedure is as prescribed by the Faculty Handbook, providing appellant had not achieved tenure, which is the apex issue for decision. Both parties fully performed under the terminal contract and no contention is made to the contrary.

On April 22, 1976, appellant filed the instant Petition for Declaratory Judgment and Injunctive Relief seeking a declaration that he had attained tenure and was thereby entitled to the benefits guaranteed to tenured faculty members. Tenure benefits include, inter alia, continued employment, except for reasons of financial exigency or discontinuance of a program or department of instruction, and then only with 12 months notice or a year's salary as severance pay. Otherwise, termination of employment could occur only as a result of specified misconduct on the part of the tenured faculty member.

Trial before the court resulted in a judgment adverse to plaintiff. For reversal appellant urges four allegations of error, each of which we will discuss. We will interpose additional facts as they are pertinent.

Three of appellant's assertions of error are interrelated, and paraphrasing them he alleges that the provision in the Faculty Handbook, incorporated into the letter contract providing for automatic tenure, was latently ambiguous in that it could have two meanings and was not defined in the contract; that the same provision was patently ambiguous in that it was contradictory to the provision in the Faculty Handbook providing for termination of contracts for non-tenured faculty; and that these ambiguities compel the construction of the contract in favor of tenure and against respondent. Appellant further asserts, in both his first and fourth allegations of error, that tenure vested on March 24, 1975, when he signed his seventh consecutive contract and respondent did not have the contractual power to thereafter unilaterally declare that contract to be his terminal contract.

These assertions require an exposition of the general rules pertaining to construction of contracts. The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties from the contract itself and to give effect to that intention. When the language of a contract is plain, there can be no construction by the court because there is nothing to construe. J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo.banc 1973); Leggett v. Missouri State Life Insurance Company, 342 S.W.2d 833 (Mo.banc 1961); General Am. Life Ins. Co. v. Rogers, 539 S.W.2d 693 (Mo.App.1976). Where the contract is clear and unambiguous, it becomes the duty of the court, as a matter of law, to state its meaning. Commerce Trust Company v. Howard, 429 S.W.2d 702 (Mo.1968). Where no ambiguity exists in the written agreement, the court cannot go outside the agreement and make a new contract for the parties. Marshall v. Estate of Marshall, 529 S.W.2d 914 (Mo.App.1975). It is only where the contract is ambiguous and not clear that resort to extrinsic evidence to show the intent of the parties is proper so as to thereby properly construe the contract; but a contract is ambiguous only when its language is reasonably susceptible to different meanings. Hathman, supra and Leggett, supra. A contract is not rendered ambiguous by the fact that the parties do not agree upon a proper construction to be given it. Hathman, supra. In construing a contract the words used therein will be given their ordinary and common sense meaning and will not be construed to include meanings to which they would not be applied by most people, Rhoden Investment Co., Inc. v. Sears, Roebuck & Co., 499 S.W.2d 375 (Mo.1973); William v. Beheler, 499 S.W.2d 770 (Mo.1973). In construing ambiguous contracts the objective is to ascertain and render effective the mutual intent of the parties; and to achieve this objective the court will consider the entire contract, subsidiary agreements, the relationship of the parties, the subject matter of the contract, the facts and circumstances surrounding the execution of the contract, the practical construction the parties themselves have placed on the contract by their acts and deeds, and other external circumstances which cast light on the intent of the parties. Leggett, supra ; Maschoff v. Koedding, 439 S.W.2d 234 (Mo.App.1969); Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252 (Mo.1972), so long as that evidence is not contradictory of, repugnant to, or inconsistent with the terms of the contract. Modine Manufacturing Company v. Carlock,510 S.W.2d 462 (Mo.1974). It is only when the contract is ambiguous, and extrinsic evidence is proper, that construction of the agreement is for the jury under proper instructions from the court. Commerce Trust Company, supra. This general law of contracts applies in the construction of teachers' contracts. Adamick v. Ferguson-Florissant School District, 483 S.W.2d 629 (Mo.App.1972).

It is appellant's initial contention that the phrase "after seven years of service" is latently ambiguous as it is not defined in the contract and is susceptible to two reasonable meanings, i. e. that tenure vested on March 24, 1975, when appellant signed his seventh consecutive contract, subject only to the completion of that contract without a breach on his part; or that the actual completion of seven years of employment was required before tenure could attach. The questioned phrase was used in the context that the respondent recognized "the principle that after seven years of service at the rank of full time Instructor or Assistant Professor tenure is automatically acquired." In this context "after" is a preposition and is variously defined in Webster's Third New International Dictionary (1971 Edition) as "behind in place or time," "later than a particular time or period of time," "following the expiration of," and "subsequent to." These are the plain, common sense and ordinary meanings to the word "after;" and when attached to the words "seven years," obviously...