Karl L. Schlotterer v. Board of Education, Coldwater Exempted Village School District, 83-LW-4308

• Decision Date: 26 April 1983
• Docket Number: 83-LW-4308,10-82-2
• Parties: KARL L. SCHLOTTERER, PLAINTIFF-APPELLANT-CROSS-APPELLEE, v. BOARD OF EDUCATION, COLDWATER EXEMPTED VILLAGE SCHOOL DISTRICT, DEFENDANT-APPELLEE-CROSS-APPELLANT.
• Court: Ohio Court of Appeals

KARL L. SCHLOTTERER PLAINTIFF-APPELLANT-CROSS-APPELLEE, v. BOARD OF EDUCATION, COLDWATER EXEMPTED VILLAGE SCHOOL DISTRICT, DEFENDANT-APPELLEE-CROSS-APPELLANT.

No. 10-82-2.

83-LW-4308 (3rd)

Court of Appeals of Ohio, Third District Mercer

April 26, 1983

Civil Appeal from Common Pleas Court.

MESSRS BIEGEL, KIRKLAND & BERGER CO., L.P.A., Mr. James R. Kirkland Mr. Richard L. Buchanan, Ms. Elaine M. Stoermer, Attorneys at Law, Suite 518, 111 West First Street, Dayton, Ohio 45402 Counsel for Plaintiff-Appellant-Cross-Appellee.

MESSRS. MEANS, BICHIMER, BURKHOLDER & BAKER CO., L.P.A., Mr. Nicholas A. Pittner, Mr. Michael J. Loughman, 42 East Gay Street, Columbus, Ohio 43215 Counsel for Defendant-Appellee-Cross-Appellant.

OPINION

MILLER P.J.

This is an appeal by plaintiff and a cross-appeal by defendant from judgments of the Court of Common Pleas of Mercer County.

Plaintiff, Karl Schlotterer, was employed as a certified elementary school principlal by defendant, Board of Education, Coldwater. Exempted Village School District, working under one year limited contracts during the 1974-75, 1975-76, and 1976-77 school years.

On April 26, 1977, plaintiff was notified in writing by defendant that his contract would not be renewed for the 1977-78 school year.

Plaintiff drew unemployment compensation from September 1977 through February 1978, was granted a pension from the State Teachers' Retirement System in January 1978, and was employed by Crown Controls Corporation from February 10, 1978, to August 21, 1980, as a laborer. Plaintiff also was granted $4,719.36 in severance pay from defendant.

On January 24, 1979, plaintiff filed his complaint against defendant seeking declaratory judgment, reinstatement and back pay. Defendant answered and subsequently both parties moved for summary judgment.

On August 18, 1980, the trial court granted summary judgment for plaintiff against defendant as follows:

"The court hereby grants judgment to the plaintiff against Defendant Board in that the plaintiff has a continuing contract with Defendant Board as a matter of law. It is the further judgment of the Court that the plaintiff is entitled to back pay and judgment is awarded in that amount."

On September 2, 1981, a hearing was held to establish the amount of "back pay" which resulted in a judgment as follows:

"* * *

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that plaintiff should receive as teacher-administrator: TABEL

"Deducting therefrom: TABEL

"Judgment is awarded in the amount of the difference ^-$14,221.56.

"IT IS FURTHER ORDERED that the Court will not make any allowance for attorney fees in this matter.

"IT IS FURTHER ORDERED that the Court will not make any award of interest prior to the judgment award in this matter.

"IT IS FURTHER ORDERED by the Court that the plaintiff's retirement and insurance claims are voluntary and optional, done at plaintiff's discretion and that no allowance or decision regarding same will be made within.

"IT IS FURTHER ORDERED by the Court that plaintiff is not entitled to credit of sick leave days and personal leave days.

"IT IS FURTHER ORDERED by the Court that plaintiff is not entitled to a lump sum payment for medical, dental and life insurance premiums provided to teachers.

"IT IS FURTHER ORDERED that the Court will not rule whether Specht v. Board. 63 Ohio St. 2d 146 (1980) has retroactive or prospective application to this matter."

Plaintiff appealed from the latter judgment, his assignments of error being directed to the computation of "back pay" therein.

Defendant cross-appealed asserting error in both the August 18, 1980 judgment and the September 2, 1981 judgment.

Prior to addressing the assignments of error set forth by the parties we will consider plaintiff's motion to strike defendant's cross-appeal. Plaintiff asserts that the judgment of August 18, 1980 was not appealed within thirty days of its entry and thus became final.

Civil Rule 56(C) provides in part that:

"* * * A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." [Emphasis added.]

R.C. 2505.02 defines a final order as follows:

"An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed. * * *"

We conclude that the judgment entry of August 18, 1980, disposed only of plaintiff's entitlement to reinstatement and back pay leaving the amount thereof undetermined, and did not constitute a final appealable order. See: Priester v. State Foundry Co., (1961), 172 Ohio St. 28; Commack v. V. H. Holderman & Sons (1973), 37 Ohio App. 2d 79; The Mayfred Co. v. City of Bedford Heights, (1980) 70 Ohio App. 2d 1.

Plaintiff's motion to strike defendant's appeal is not well taken and is, therefore, overruled.

Defendant's first two assignments of error on its cross-appeal are:

1. The lower court erred in not ordering that plaintiff-appellant Karl L. Schlotterer's right to a continuing contract was barred by the doctrine of laches.

2. The lower court erred in not ordering that plaintiff-appellant Karl L. Schlotterer's right to a continuing contract was barred by the doctrine of estoppel or, in the alternative, that plaintiff-appellant had waived his right to a continuing contract.

Although defendant set forth the affirmative defenses of laches, estoppel, and waiver in its answer such defenses were not asserted either in its motion for summary judgment or in its memorandum in support thereof and no evidentiary documentation was filed by defendant relative thereto.

Civil Rule 56(E) provides that:

"* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth special facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The court in Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64 at page 66, stated as follows:

"* * * Unsupported allegations in the pleadings do not suffice to necessitate the denial of a summary judgment. The principal function of Civ. R. 56(E) is to enable movement beyond allegations in the pleadings, and to analyze the evidence so as to ascertain whether an actual need for a trial exists."

Defendant not having affirmatively asserted the defenses of laches, estoppel and waiver in the summary judgment action wherein plaintiff was adjudged to be entitled to a continuing contract, no error of the trial court resulted as asserted in assignments of error one and two.

Defendant's third assignment of error is:

The lower court erred in deciding that the decision of State ex rel. Specht v. Board of Education, 63 Ohio St. 2d 146 (1980) had retroactive application to plaintiff-appellant's claims for relief.

We first note that the trial court in its judgment of December 10, 1981, specifically stated that it would "not rule whether Specht v. Board, 63 Ohio St. 2d 146 (1980) has retroactive or prospective application to this matter." Reference is made however to that case in the judgment entry of August 18, 1980.

In Specht v. Board, supra, the court held that an individual who is certified, has achieved continuing service in another school district in Ohio, and has served as an assistant principal (administrator) under limited contracts of employment is entitled to a continuing contract as a teacher.

The Board herein argues that the Specht case addresses for the first time the issue as to plaintiff's entitlement to a continuing contract as a teacher. The Board further argues that it relied on the appellate decision in the Specht case (7-147, Lake County Court of Appeals, 1979, rev. 63 Ohio St. 2d 146,) to their detriment. This, however, is impossible in that plaintiff's notice of non-renewal was dated April 26, 1977, substantially in advance of the appellate court decision in Specht.

We also note that contrary to defendant's position there was authority preceding its action on April 26, 1977 in accord with the supreme court decision in Specht.

Saltsman v. Burton (1950), 154 Ohio St. 262 and 156 Ohio St. 537 (1953) held that a principal was not entitled to tenure in that position. That case did not, however, answer the question as to whether a principal would have the tenure protection of a teacher.

In Ross v. Bd. of Education (1977), 52 Ohio App. 2d 28, wherein a former principal was placed in the position of language Arts Supervisor, Judge Corrigan, writing for the court, stated (page 30):

"* * * The appellee met the requirements for tenure as a classroom teacher and was entitled to a continuing service contract in that capacity. * * * [Appellee] could not legitamately be refused employment as a classroom teacher unless the board followed the procedures and met the requirements set forth in R.C. 3319.16."

And at page 32:

"The appellee does retain, under the provisions of the Teacher Tenure Act, her protection as a classroom teacher."

We conclude that at the time plaintiff was notified of the non-removal of his contract there was no authority consistent with the appellate decision in the Specht matter, but, to the contrary, the authority at that time was consistent with the supreme court decision in the Specht case.

We thus conclude that the trial court did not necessarily apply ...