Lopez v. Vance, 35127

• Decision Date: 12 March 1974
• Docket Number: No. 35127,35127
• Citation: Lopez v. Vance, 509 S.W.2d 197 (Mo. App. 1974)
• Parties: Alphonzo N. LOPEZ, Plaintiff-Appellant, v. K. E. VANCE et al., Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 197

509 S.W.2d 197

Alphonzo N. LOPEZ, Plaintiff-Appellant, v. K. E. VANCE et al., Defendants-Respondents.

No. 35127.

Missouri Court of Appeals, St. Louis District, Division One.

March 12, 1974.

Motion for Rehearing or Transfer to Court En Banc or to

Supreme Court Denied April 8, 1974.

Application to Transfer Denied June 10, 1974.

Buerkle, Buerkle & Lowes, Jackson, for plaintiff-appellant.

Limbaugh, Limbaugh & Russell, Cape Giradeau, Dennis C. Brewer, Perryville, for defendants-respondents.

SIMEONE, Judge.

This case involves the construction and interpretation of the Missouri Teacher Tenure Act, §§ 168.102--168.130, RSMo 1969, V.A.M.S., adopted by the General Assembly, effective July 1, 1970.

Plaintiff-appellant, Alphonzo N. Lopez, appeals from a decree in favor of the defendants-respondents, entered on January 11, 1973, by the circuit court of Perry County decreeing that 'Plaintiff is not entitled to the relief prayed for in Count I of his petition' and that 'Plaintiff is not a person entitled to the benefits of the Missouri Teacher Tenure Act. . . .'

Plaintiff, Mr. Lopez, is an electronics teacher in Perryville School District No. 32 (hereinafter school district). Mr. Raymond Pensel is the senior high school principal and Mr. K. E. Vance is the superintendent of the school district.

Mr. Lopez instituted this proceeding by filing a petition in two counts. Count I alleged that the General Assembly adopted the Teacher Tenure Act, effective July 1, 1970, that plaintiff was a duly licensed instructor, that he was employed by and completed his '5th year at the close of the school year in May of 1971, and thereby became a 'permanent teacher' within the meaning of the Missouri Teacher Tenure Act, and, therefore, by law entitled to an indefinite contract.' He further alleged that the district did not tender him an indefinite contract for the year 1971--1972 and has not paid him all the normally scheduled wages that he was entitled to; that he is ready, willing and able to offer his services to the district, that he has been notified that he is not eligible for retirement credit for the year 1971--1972. He prayed for a mandatory injunction directing the officials of the district to tender him a contract which complies with the Teacher Tenure Act for 1972--1973 and that the defendants be enjoined from interfering with the performance of a contract and to order the district to take the necessary steps to correct the records with the Teachers' Retirement System, and he sought additional compensation for 1971--1972.

Count II alleged a conspiracy on the part of the defendants to make the performance of his duties difficult and sought damages therefor.

The parties agreed that only Count I would be the subject of the hearing and any appeal, and that the court should make Count I an appealable order under Rule 81.06, V.A.M.R.

Evidence was taken. Mr. Lopez testified and his attorney introduced excerpts from the depositions of Mr. Pensel and Mr. Vance.

The Perryville school district school day begins at 8:00 a.m. and ends slightly after 3:00 p.m. There are six hours in the school day, but the school day is divided into seven periods of fifty-five minutes each. A teacher is required to serve a total of six period either in the classroom or in some form of supervision either in the lunchroom, or in the gymnasium or study hall. During the five years from 1966--1967 academic year through the 1970--1971 academic year, Mr. Lopez was assigned classroom instruction, and previous to the academic year 1971--1972 he had an assignment of supervising a lunchroom as one of his regular periods.

The attorneys for the parties at the hearing on January 11, 1973 stipulated to certain facts: (1) Mr. Lopez was hired to teach electronics in the Vocational and Technical Education Program; he taught six hours in the years 1966--1967, 1967--1968, 1968--1969, 1969--1970 and 1970--1971, a total of five years;

(2) For the academic year 1971--1972, Mr. Lopez taught five periods rather than six and was paid on a 5/6 basis of his salary of $8,000.00. (The contract the school district and Mr. Lopez entered into for the 1971--1972 school year was dated March 10, 1971);

(3) For the school year 1972--1973, Mr. Lopez was initially offered a contract to teach two hours at 2/6 pay, but prior to the school year the 'contract' was enlarged to include teaching five hours at 5/6 pay. During the school year 1972--1973, he taught five hours (periods) and received 5/6 pay. ¹

(4) That Mr. Lopez, during all the period had a valid teacher's certificate in the electronics field;

(5) That Court I of the petition presents a legal issue with respect to the Teacher Tenure Act;

(6) That when Mr. Lopez began teaching five hours (periods) instead of six the State Retirement Board was notified of the fact, and that a notice was sent to him from the retirement board to the effect that he was not a full time teacher and that he would not participate in the same retirement program as teachers who were teaching six hours; and

(7) The salary paid to Mr. Lopez during the '71--'72 year was $6,666.65, 5/6 of $8,000.00 and the salary for the '72--'73 year was 5/6 of the $8,100.00.

Mr. Lopez testified that he taught in the Perryville School System as a vocational instructor in electronics since 1966. Since 1966, until the 1971--72 year, he taught a total of six periods--five hours of class instruction and one of supervision. During the first five years he was assigned as supervisor at the cafeteria. In the school year 1971--1972, however, he was not assigned any supervisory duties to make up the sixth period, but did teach five hours of classroom instruction--electronics I, one hour twice a day and electronics II, a three period class. He also had a 'conference' period--a preparatory period which 'we do not get paid for.'

For the 1971--1972 year he was tendered a contract for 5/6 of his salary, which was signed by him. He testified that he was ready, willing and able and available to take all the 'chores' the school would assign and ready, willing and able to teach six periods. He testified that there were several teachers who supervised study halls during the six periods, which counts toward the six periods.

During the school year 1971--1972, Mr. Lopez was free to leave the school 'a little after 2:00' as opposed to 3:00.

Portions of the depositions of the principal, Mr. Pensel, and the superintendent, Mr. Vance, were read as part of the plaintiff's case. The deposition of Mr. Pensel indicated that seven periods of fifty-five minutes is a school day, and that instructors teach six periods, which include some supervisory duties during lunch periods in the gymnasium or in the lunchroom, as well as study hall.

He admitted knowing of some school systems which pay teachers their full salary who only put in five hours, but in this system teachers 'teach' six periods which may include supervision. His answers in his deposition indicated that the reason that Mr. Lopez was paid 5/6 of his salary was because there was an insufficient number of pupils for his courses. Mr. Pensel stated that Lopez 'did an unsatisfactory job' of supervising the lunchroom, hence 'he doesn't have lunch rooms anymore.'

Much was made of the fact in both Mr. Pensel's and Mr. Vance's depositions that the board submitted to the voters an additional one dollar levy for four years to be used for a matching fund basis for federal funds, which would be used for various types of vocational education including electronics, this presumably to refute the reason for the decrease in salary that there was an insufficient number of pupils to take electronics.

Portions of Mr. Vance's deposition were read by the appellant. Mr. Vance stated that at contract time, Mr. Pensel indicated 'there was some question whether or not we would have enough students for electronics II.' The testimony that was read indicated that the board did ask for an additional one dollar levy for four years to be used for vocational purposes.

After reading the portions of the depositions, plaintiff rested. At that time, the attorney for the defendants moved for judgment on the ground that the plaintiff failed to show sufficient facts to entitle the plaintiff to relief on Count I. Then the attorney for Mr. Lopez requested findings of fact and conclusions of law. But the court stated, 'That comes too late. . . . (T)he rules are very plain that if you want findings of fact and conclusions of law, they must be asked for in the beginning.' The court then stated that upon 're-reading of subparagraph 4 of § 168.104 the Court will find in favor of the Defendants and against the Plaintiff.'

Thereafter, the court entered its decree: (1) ordering Count I of the plaintiff's petition severed and that its decree on Count I be 'deemed a final judgment for purposes of appeal under Supreme Court Rule 81.06,' and (2) having heard the evidence decreed 'for the Defendants and against the Plaintiff, at the close of the Plaintiff's evidence upon motion of Defendants.' The court ordered and decreed that plaintiff is not entitled to the relief prayed for in Count I, and that the 'Plaintiff is not a person entitled to the benefits of the Missouri Teacher Tenure Act as provided in Section 168.102 et seq. RSMo.1969.'

In due time Mr. Lopez appealed.

On appeal, Mr. Lopez makes two points: (1) the court erred in failing to honor his request for findings of fact and conclusions of law pursuant to Rule 73.01(b) and (2) the court erred in finding that the plaintiff was not a 'tenured' or permanent teacher entitled to the benefits of the Teacher Tenure Act, and that plaintiff was not employed after his fifth year of teaching as a 'full-time' teacher as contemplated by § 168.104(4). His position as indicated to the trial court is that having been employed for five years as a full time teacher and thereafter having made himself available for full-time service in...