James v. Hitchcock Independent School Dist.

• Decision Date: 15 January 1987
• Docket Number: No. 01-85-0906-CV,01-85-0906-CV
• Citation: 742 S.W.2d 701
• Parties: 44 Ed. Law Rep. 837 Dianne JAMES, Appellant, v. HITCHCOCK INDEPENDENT SCHOOL DISTRICT, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 701

742 S.W.2d 701

44 Ed. Law Rep. 837

Dianne JAMES, Appellant, v. HITCHCOCK INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 01-85-0906-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 15, 1987.

Robert E. Hall, Houston, for appellant.

Tracey Whitley, Doyal, Hairston & Walsh, P.C., Austin, for appellee.

Before EVANS, C.J., and DUGGAN and WARREN, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a take-nothing summary judgment holding that a school district can unilaterally modify a teacher's "continuing" contract. Following a hearing on cross-motions for summary judgment the trial court rendered final judgment in favor of the appellee/defendant, Hitchcock Independent School District, and denied all relief sought by the appellant/plaintiff, Dianne James, on her motion for partial summary judgment.

Appellant, Dianne James, a high school librarian and 20-year employee of the Hitchcock Independent School District ("the District"), was employed on a 10 month (203 days) teacher's continuing contract which began in the 1979-1980 school year. Her salary was determined by dual formula, with 183 days paid at the rate set by the Foundation School Program, Tex.Educ.Code Ann. §§ 16.001-16.524 (Vernon Supp.1986), and with the remaining 20 days paid by local funding. Step increases were added as annual increments to her salary.

On March 4, 1981, the District informed James by letter from the school superintendent that, beginning with the 1981-1982 school year, the District would begin to reduce her locally-funded days on a downward scale to absorb her state-mandated increases until the District's contribution eventually became a constant $1,400 annual payment. The letter included a paragraph praising her work and was accompanied by increased duties.

James protested the cut-back in her work schedule and filed an appropriate written request to meet and discuss the change with the District's Board of Trustees ("the Board"). The superintendent first told her that the Board would not meet with her, then said that the Board would hear her based on advice of counsel, and finally set out a procedure requiring her to submit her remarks in written form to the Board. Although the superintendent first told James that the trustees might not hear her, he nevertheless encouraged her to attend the Board's meeting for a possible hearing in executive session. The Board apparently had already met privately with the superintendent about the matter on two occasions, according to James' summary judgment proof. James invoked the auspices of the Texas Open Meetings Law, Tex.Rev.Civ.Stat. art. 6252-17 (Vernon 1970), and ultimately filed this lawsuit.

On appeal, James seeks: (1) reversal of the summary judgment in favor of the District; (2) rendition of summary judgment in her favor; (3) remand to the trial court for the determination of damages; (4) injunctive relief; and, (5) attorney's fees and costs of court.

Both sides agree that, in 1979, appellant and the District entered into a ten month (203 days) continuing contract, governed by provisions of the Foundation School law, Tex.Educ.Code Ann. §§ 16.051-16.056, which required that the District contract with appellant for a minimum of 183 days. In the 1979 continuing contract, 20 days were added to that minimum by the local Board and were funded by local supplement.

The District argues that a policy of "transfer and reassignment" adopted by the Board of Trustees on February 26, 1981, six days prior to the letter to appellant, authorized the Superintendent to "assign and transfer" personnel, and that a 1982 revision of the policy empowered the Superintendent to take away "extracurricular" assignments. The District maintained that since James' contract with the District contained a clause accepting rules and regulations then existent or later added, the cut-back in her locally funded days under the continuing contract was authorized by the clause and by this policy.

Because both parties moved for summary judgment, this court may review both the denial as well as the grant of summary judgment. Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.). Each party has the burden of clearly proving its right to judgment as a matter of law, and neither may prevail simply because the other failed to discharge his burden. Traylor v. Unitedbank, 675 S.W.2d 802 (Tex.App.--Beaumont 1984, writ ref'd n.r.e.).

This Court may consider only the summary judgment issues presented in the motions before the trial court. Tex.R.Civ.P. 166-A(c). The District is limited by its motion for summary judgment to a challenge of appellant's pleadings.

As a general rule, the issue of whether pleadings fail to state a cause of action may not be resolved by summary judgment. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). When pleadings fail to state a cause of action, the proper course for the opposing party is to file special exceptions. Spencer v. City of Seagoville, 700 S.W.2d 953 (Tex.App.--Dallas 1985, no writ). Only after a party has been given an opportunity to amend after special exceptions have been sustained may the cause be dismissed for failure to state a cause of action. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). If, however, the pleading deficiency is of the type that cannot be cured by an amendment, a special exception is unnecessary and a summary judgment based on the pleadings' failure to state a legal claim is in order. Jacobs v. Cude, 641 S.W.2d 258, 261 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). The District did not file special exceptions, and did not identify a missing element or incurable defect in appellant's causes of action. However, legal memoranda filed with the District's motion for summary judgment noted that James failed to allege facts that either constituted a violation of her rights or demonstrated a constitutional impairment of the obligation of contract. It also urged that those facts which she did allege failed to establish a cause of action for violation of a statute or policy.

If the plaintiff-appellant's pleadings properly asserted a cause of action, or if plaintiff's pleadings were defective but were curable by amendment, summary judgment for the District was improper. Texas Department of Corrections v. Herring, 513 S.W.2d at 10.

Appellant's original petition sought a declaration of her rights under the 1979 continuing contract, pursuant to the Uniform Declaratory Judgments Act as now codified by Tex.Civ.Prac. & Rem.Code Ann. §§ 37.001-37.011 (Vernon 1986). Section 37.004 provides:

(a) A person interested under ... written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a ... contract ... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.

(b) A contract may be construed either before or after there has been a breach.

In suits for declaratory relief, the trial court has limited discretion to refuse a declaratory judgment, and may do so only where judgment would not remove the uncertainty giving rise to the proceedings. Tex.Civ.Prac. & Rem.Code Ann. § 37.008. Appellant's petition sufficiently stated a cause of action under the Uniform Declaratory Judgments Act to entitle her to a declaration of her status under the 1979 continuing contract.

Appellant's petition asserted her residency in the county where suit was filed, venue, the existence of the 1979 continuing contract for 203 days annual employment, the conduct by the District which unilaterally changed that contract by reducing the number of days, the refusal of the District to meet with her in open session to resolve the dispute, and her economic damages resulting therefrom. See Southern National Bank v. City of Austin, 582 S.W.2d 229 (Tex.Civ.App.--Tyler 1979, ref'd n.r.e.).

A contract may be construed either before or after there has been a breach. Tex.Civ.Prac. & Rem.Code Ann. § 37.004(b) (Vernon 1986). In a suit for declaratory judgment, no particular type of pleading is required, Frost v. Sun Oil Co., 560 S.W.2d 467, 473 (Tex.Civ.App.--Houston [1st Dist.] 1977, no writ), so long as an actual controversy exists, Powell v. Estelle, 580 S.W.2d 169, 171 (Tex.Civ.App.--Austin 1979, ref'd n.r.e.), cert. denied, 444 U.S. 892, 100 S.Ct. 198, 62 L.Ed.2d 129 (1979), and the suit is within the jurisdiction of the petitioned court. Wilson v. Wilson, 378 S.W.2d 156 (Tex.Civ.App.--Tyler 1964, no writ). The District does not contest either the existence of actual controversy or the trial court's jurisdiction.

Because appellant stated a cause of action, her first point of error is sustained and the summary judgment awarded the District is reversed.

The trial court's order purported to determine all matters, but failed to construe the 1979 continuing contract. The parties agree that the material facts are established, and that only legal questions remain. Therefore, this Court must render the judgment which the trial court should have rendered. Southern National Bank v. City of Austin, 582 S.W.2d at 237, Donald v. Carr, 407 S.W.2d 288, 291 (Tex.Civ.App.--Dallas 1966, no writ).

Because the causes of action that appellant asserts are dependent upon her status under her 1979 continuing contract, this Court must construe that agreement in order to decide appellant's second point of error, i.e., whether the trial court erred in denying her motion for partial summary judgment.

The 1979 contract was a continuing contract, a contract for tenured public school teachers. Wells v. Hico Independent School District., 736 F.2d 243, 255 (5th Cir.1984). Tex.Educ.Code Ann. §§ 13.106-13.116 (Vernon 1972).

The continuing contract and a teacher's status under it are statutory creations. Tex.Educ.Code Ann. § 13.106 (Vernon 1972)....