Hennum v. City of Medina, 11352

• Decision Date: 02 March 1987
• Docket Number: No. 11352,11352
• Parties: Stanley HENNUM, Plaintiff, Appellant and Cross-Appellee, v. CITY OF MEDINA, Mayor Ernest Moser, individually and in his official capacity as Mayor, Defendants, Appellees and Cross-Appellants. Civ.
• Court: North Dakota Supreme Court

Page 327

402 N.W.2d 327

Stanley HENNUM, Plaintiff, Appellant and Cross-Appellee, v. CITY OF MEDINA, Mayor Ernest Moser, individually and in his official capacity as Mayor, Defendants, Appellees and Cross-Appellants.

Civ. No. 11352.

Supreme Court of North Dakota.

March 2, 1987.

Dietz & Little, Bismarck, for plaintiff, appellant and cross-appellee; argued by Kathryn L. Dietz, appearance by Stephen D. Little.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendants, appellees and cross-appellants; argued by Daniel L. Hovland.

ERICKSTAD, Chief Justice.

Stanley Hennum appeals from the judgment of the district court limiting his recovery of damages for breach of an employment contract against the City of Medina, and limiting his recovery of damages for tortious interference with contract against the mayor of Medina, Ernest Moser. Hennum also appeals the district court's dismissal of his claim for relief under 42 U.S.C. Sec. 1983 against Mayor Moser for terminating his employment without due process.

Mayor Moser and the City of Medina cross-appeal from the judgment of the district court finding that Mayor Moser terminated Hennum's employment without authority, and Mayor Moser further cross-appeals from the district court's judgment that he had committed the tort of intentional interference with contract when he terminated Hennum's employment on February 25, 1985. We affirm that part of the district court's judgment relating to contractual damages, breach of contract, and dismissal of the federal constitutional claim; however, we reverse that part of the district court's judgment holding that justification for the dismissal was immaterial in conjunction with the commission of the tort of intentional interference with contractual relations.

On July 14, 1980, Hennum was employed by action of the Medina City Council as the city maintenance person. On February 28, 1985, Mayor Moser terminated Hennum's employment with the city. The Medina City Council passed a motion affirming Mayor Moser's termination of Hennum's employment on April 27, 1985.

On April 2, 1985, Hennum commenced an action against the city and Mayor Moser for damages resulting from his termination as a city employee. In his complaint Hennum alleged several claims for relief which included violations of his right to privacy, breach of contract, deprivation of due process, age discrimination, and tortious interference with contractual relations. Hennum prayed for general damages in the amount of $100,000 and punitive damages in the amount of $150,000.

On April 30, 1985, the mayor and city council served an answer alleging, inter alia, that Hennum's employment was terminated effective February 28, 1985; that he was without a written contract or job description; that he performed general duties relative to maintaining the city water and sewer system, city streets, city laundromat, and other duties requested by the mayor and city council; that he was employed at will and his employment was subject to termination with or without cause; and that he was treated fairly and in good faith by the mayor and city council.

On September 23, 1985, the mayor and city council moved for summary judgment. Hennum moved for partial summary judgment on October 3, 1985. On October 17, 1985, the district court entered an order dismissing Hennum's claim for relief for age discrimination and denied the motions for summary judgment as to the remaining issues.

On March 12, 1986, a stipulation of partial dismissal ¹ was entered into by the parties. In the stipulation Hennum agreed that he was an at will employee and elected not to pursue his claim for breach of an implied covenant of good faith and fair dealing; however, he continued to assert his claims for breach of contract, deprivation of due process, and tortious interference with contractual relations. Hennum again moved for partial summary judgment on March 24, 1986.

On June 13, 1986, the district court issued a memorandum opinion, granting partial summary judgment to Hennum. The district court concluded that there had been a breach of the employment contract on February 28, 1985, when Hennum's employment was terminated by Mayor Moser; however, the court also concluded that the Medina City Council's action ratified and affirmed the termination and became effective on April 27, 1985, the date of the passage of the motion ratifying and affirming the termination by the mayor. The district court further concluded that Hennum had established a cause of action in tort for intentional interference with contractual relations against Moser because of his unauthorized termination of Hennum's employment on February 28, 1985; however, the court left open the determination of the claim as to damages for that tort. The district court finally concluded that Hennum was, by stipulation of the parties, an at will employee not entitled to federal constitutional due process. An order granting partial summary judgment was accordingly entered on July 23, 1986.

On August 27, 1986, the district court issued its memorandum opinion and order that incorporated the earlier orders, and awarded damages for breach of contract to Hennum for $1,620.00, an amount that represents Hennum's salary for approximately one and one-half months.

On September 11, 1986, the district court ordered judgment and concluded, in part:

"1. Defendant Mayor Ernest Moser's termination of the plaintiff's employment contract on February 28, 1985, was without legal authority and the Medina City Council's inaction with respect to the plaintiff's termination breached the employment contract between the City of Medina and the plaintiff.

"2. That the Medina City Council's resolution of April 27, 1985, affirming the termination of the plaintiff is effective only prospectively from the date of the resolution, i.e., April 27, 1985. As a result, damages for such breach of contract are limited to that period of time between on or about February 28, 1985, to April 27, 1985.

"3. That the plaintiff's cause of action for a violation of his federal constitutional rights under the Fifth and Fourteenth Amendments is dismissed. The plaintiff has no property interest in his employment that would entitle him to notice of the reasons of his discharge and an opportunity to respond before he could be deprived of that property interest.

"4. That the defendant Mayor Ernest Moser has, as a matter of law, committed the tort of intentional interference with contract as a result of his actions taken on February 28, 1985, to terminate the plaintiff. The defendant tortiously interfered with the plaintiff's employment contract with the City of Medina in that:

(a) there was a valid contractual employment relationship between the City of Medina and the plaintiff;

(b) the defendant Mayor Moser had knowledge of the contractual employment relationship;

(c) defendant Mayor Moser intentionally interfered by inducing or causing a breach of the contractual employment relationship; and

(d) there were resulting damages.

"5. That mistake or good faith on the part of defendant Mayor Ernest Moser as to the propriety of his act of tortious interference with contract is not relevant and proper for consideration by the jury.

"6. The plaintiff is awarded damages against the defendant City of Medina in the amount of $1,620 as lost wages for breach of contract, representing one and one-half months' salary and no offset for other income earned by the plaintiff from the date of termination until April 27, 1985.

"7. The effective period for the recovery of damages for the tort of intentional interference with contract by defendant Mayor Ernest Moser is for that period of time on or about February 28, 1985, to April 27, 1985."

Both parties appeal from the judgment and raise the following issues:

I

Whether or not the district court erred in concluding that Mayor Moser's termination of Hennum's employment was without legal authority.

II

Whether or not the district court correctly limited Hennum's damages for breach of contract to that period of time between February 28, 1985, and April 27, 1985.

III

Whether or not the district court erred by dismissing Hennum's cause of action alleging due process violations for failing to state a claim upon which relief can be granted.

IV

Whether or not the district court erred in concluding that Mayor Moser committed the tort of intentional inference with contractual relations by terminating Hennum's employment on February 28, 1985.

The first issue is whether or not Mayor Moser has authority expressly or impliedly conferred upon him by ordinance or by applicable law or by the Medina City Council to terminate Hennum's employment as the city maintenance person. The general rule is that:

"[t]he powers and duties of the mayor or chief executive rest almost entirely upon the proper construction of the charter and the ordinances or bylaws and municipal regulations passed in pursuance of such authority. He has no authority, except what is expressly or impliedly conferred upon him by the charter or applicable law, or by the council or governing legislative body acting within the scope of the law." [Footnotes omitted.] 3 McQuillin, Municipal Corporations Sec. 12.43 (3d ed. 1982).

The City of Medina has a specific ordinance ² which governs the appointment of officers to the city that was adopted pursuant to Section 40-0819, R.C. 1943, predecessor to Section 40-08-19, N.D.C.C. The ordinance provides in section one that "the Mayor shall appoint and submit to the City Council for approval and confirmation, the following officers: City Auditor, City Assessor, City Attorney, City Engineer, and such other officers as may by the City Council be deemed necessary or expedient." Section one of the ordinance also provides that "[a] certificate of appointment shall be issued to each of such duly appointed officers." Section two of the ordinance provides that "[a]ny officer appointed by the...