Lynch v. Webb City School Dist. No. 92, 8194

Decision Date06 December 1963
Docket NumberNo. 8194,8194
Citation373 S.W.2d 193
PartiesBlanche Deputy LYNCH, Plainiff-Respondent, v. WEBB CITY SCHOOL DISTRICT NO. 92, William H. Perry, William R. Chinn, John Lewis, Harvey E. Arnce, Robert J. Baker, Ralph H. Costley, and Lawrence Miner, Defendants-Appellants.
CourtMissouri Court of Appeals

Myers & Birk, Webb City, for defendants-appellants.

Seiler, Blanchard & Van Fleet, Herbert Van Fleet, Joplin, for plaintiff-respondent.

RUARK, Presiding Judge.

This is an appeal from a summary judgment (Civil Rule 74.04, V.A.M.R.) rendered in favor of plaintiff-respondent on the first count of plaintiff's petition in a school teacher's suit to enjoin the board and officials of the Webb City School District No. 92 from preventing her from performing her contract, for an order that she be reinstated, for the balance due under her contract, and for 'such other and further relief.'

The suit was brought May 16, 1961, against the Webb City School District and the named persons as its directors and its superintendent. It alleged that by written contract plaintiff was employed to teach for the school year (1960-1961) for a term of nine months, commencing in September 1960; that she did so teach through April 13, 1961, at which time the board terminated her services for the school year, although it voted to pay her salary for the remainder of the school year; that plaintiff offered to continue teaching, but defendants prevented her from so doing; that defendants tendered plaintiff a check in the sum of $1,266.44 for the balance of the school year, but, as a condition of cashing the check, required her to execute a release in full of all claims; that plaintiff had (also) a claim against the district under a contract to teach for the following (1961-1962) year, and she refused to sign the release for that reason although she offered to give a receipt in full for the 1960-1961 year; but defendants refused to pay the balance unless she would release her claims in regard to the contract for the 1961-1962 year.

The second count declared upon a written contract to teach for the 1961-1962 year. It is not of concern to this case except as it may affect the finality and appealability of the judgment on count one.

The answers of defendants make various allegations. We will consider only those which are carried into the appellants' contentions in their brief as furnishing genuine issues. These contentions are whether or not: (1) plaintiff resigned; (2) plaintiff voluntarily abandoned her contract; (3) plaintiff performed her duties under the contract; (4) the contract originated in breach of faith and was obtained by unfair concealment; (5) plaintiff tried to mitigate damages; and (6) plaintiff had an adequate remedy at law.

The undisputed facts, as they appear from the pleadings, admissions, and answers to interrogatories, are as follows:

Plaintiff was a legally certified teacher. On April 8, 1960, there was a written contract whereby plaintiff was employed by defendants for a period of nine months, commencing on September 6, 1960, at a salary of $3850 per year payable in twelve monthly installments. She filed with the board her certificate from the State Board of Education of Missouri, entered upon her duties as a teacher, reported regularly for work and performed the duties prescribed by her contract, unless the matters contended in appellants' brief can be said to be a failure to perform.

At a board meeting held on March 10, 1961, a number of teachers, including plaintiff, were re-elected for the 1961-1962 term. A form of contract was sent to plaintiff together with a letter advising her that it was the contract for the next year and that she had until April 20 to sign and return it. Plaintiff signed such contract and delivered it on April 11. 1 On April 11, Superintendent Miner informed the board that plaintiff's contract had been returned unsigned. The answers of defendants to count two deny that a contract for 1961-1962 was entered into.

At a special meeting of the board held on April 13, 1961, the superintendent advised the board he had been in error in advising the board that plaintiff had not signed and returned her contract. It was first voted that 'Mrs. Deputy's services be terminated at the end of the 1960-61 term and that a notice be sent her to that effect signed by both the president and the secretary of the board.' Superintendent Miner presented the following reasons why Mrs. Deputy not be retained as teacher:

(1) She is critical of other teachers.

(2) She is critical of the administration.

(3) She questions administrative decisions in an unprofessional manner.

(4) She lacks professional ethics in our opinion.

(5) She lacks desired tact in dealing with some parents or guardians.

(6) She is reluctant to carry out extra assignments.

(7) In our opinion, she performed an act of disloyalty toward the Board of Education, and the Superintendent of Schools.

Thereupon, it was voted that (a) plaintiff's services and contract be terminated immediately and (b) she be paid 'the balance of her contract for the 1960-61 term but that her services for the year be terminated immediately.'

Plaintiff was present at the meeting and through her attorney offered to continue her teaching, but at such meeting the superintendent informed her that her services were terminated and she should not report for work. Nevertheless, on the morning of the next day, before school hours, plaintiff called the superintendent and offered to work but was told not to. The following day she was notified in writing that her contract was 'immediately terminated under Section 163.100 Revised Statutes of 1949 because of violations of the rules and regulations of the Board of Education.' Defendants thereafter tendered plaintiff a check for $1,266.44 and plaintiff refused to cash it because it contained, on the back, a release of any and all claims against the district.

We must first examine our jurisidiction. Anderson v. Metcalf, Mo., 300 S.W.2d 377. The summary judgment on count one was entered without further order in respect to finality. Ordinarily, a judgment to be final must dispose of all the issues in the case and if it is not final the judgment is not appealable. Appeals cannot be allowed piecemeal. Swan v. Stuart, Mo.App., 350 S.W.2d 832; Bays v. Lueth, Mo., 323 S.W.2d 236. But the appellate courts should avoid disposition of appeals on procedural grounds 'when permissible.' Hahn V. Hahn, Mo., 297 S.W.2d 559. Civil Rule 82.06, V.A.M.R., provides that, when a separate trial is had before the court upon claims arising out of the same transaction or occurrence, the judgment upon one shall not be final unless specifically so designated. But when separate trial is had before the court on separate and independent claims, the judgment shall be deemed final unless the court orders it held in abeyance or enters it as an interlocutory judgment.

In this case, counts on and two were based on entirely different and distinct contracts. They call for service for different periods. This service as to count one was nearly completed, although the period of payment of installments was not. As to count two, the period contemplated for service had not commenced. The contract for count one is not denied. The contract involved in count two is disputed. The two actions have no relation to each other except that the matters claimed in defense (to be considered hereafter) may, if they be a genuine defense at all, be provable by the same evidence. We believe the finality of the judgment on count one is governed by the holding in Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377. If the actions are entirely separate and distinct, the situation would be governed by the concurring opinion in the Pizzo case at 295 S.W.2d l. c. 387. If the actions are deemed to be related, then we think the judgment of the court is to be construed as an intention to make final disposition of count one and an order for separate judgment thereon, as held in the majority opinion of the Pizzo case. For such reasons we accept jurisdiction.

The written notice of 'immediate termination' which was served on plaintiff-respondent was stated to be 'under Section 163.100 Revised Statutes of 1949.' That section specifically provides '[t]he board shall have no power to dismiss a teacher; but should the teacher's certificate be revoked, said contract is thereby annulled.' It is not contended that plaintiff's certificate had been revoked. The courts have 'inflexibly enforced' the rule of such statute prohibiting dismissal by the board. It has no implied authority to dismiss for any reason. Lemasters v. Willman, Mo.App., 281 S.W.2d 580; Magenheim v. Board of Ed. of School Dist. of Riverview Gardens, Mo.App., 347 S.W.2d 409. True, the statute does permit the board to withhold the pay of a teacher if such teacher fails or refuses to comply with the terms of the contract or execute the rules and regulations of the board, until compliance is rendered, but this withholding of pay is permitted only after due notice in writing. See Wood v. Consolidated School Dist. No. 13, Mo.App., 7 S.W.2d 1018. The action of the board of directors did not purport to be a withholding of pay pending compliance with the rules. As a matter of fact, it is the opposite. The action was a termination of the contract and payment for the balance of the year's salary.

The action by someone in making the payment of this sum conditioned upon a release of other claims was apparently without authorization of the board. The order of the board was to pay, not to pay upon condition. Nor was the plaintiff given any 'due notice' as provided by the statute. The fact that its reasons for termination were entered on the minutes was not the notice contemplated by the statute. Neither were the items thereon specified sufficiently definite and specific to apprise a person of all the specific things she was doing or failing to do in order...

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