Manes v. Dallas Baptist College, 20974

• Citation: 638 S.W.2d 143
• Decision Date: 06 July 1982
• Docket Number: No. 20974,20974
• Parties: 6 Ed. Law Rep. 417 Dr. Charles V. MANES, Appellant, v. DALLAS BAPTIST COLLEGE, Appellee.
• Court: Court of Appeals of Texas

Page 143

638 S.W.2d 143

6 Ed. Law Rep. 417

Dr. Charles V. MANES, Appellant, v. DALLAS BAPTIST COLLEGE, Appellee.

No. 20974.

Court of Appeals of Texas,

Dallas.

July 6, 1982.

Rehearing Denied Aug. 23, 1982.

James A. Johnston, Johnston & Larson, Dallas, for appellant.

William A. Smith, Smith, Smith & Florsheim, Dallas, for appellee.

Before AKIN, SPARLING and FISH, JJ.

AKIN, Justice.

Dr. Charles Manes appeals from a summary judgment granted against him in his suit for breach of his employment contract with Dallas Baptist College. Dr. Manes was discharged by the College's Board of Trustees for alleged insubordination. Dr. Manes then sued alleging that he was terminated without cause, in breach of his employment contract. The College moved for summary judgment, which was granted, on the ground that the contract provided for common law arbitration. Because the trial judge improperly construed the employment contract, we reverse the judgment and remand for trial.

The crucial language in the contract provided:

Tenured faculty may be terminated for incompetence or moral turpitude or insubordination or unethical conduct or financial exigency of the college, and then only after due process.

....

In every case of termination of a tenured faculty member the faculty member shall be informed in writing of the specific circumstances upon which his/her termination is based. The faculty member will be provided the opportunity to appeal to the Campus Administration. The action taken by the Board of Trustees shall be final. [Emphasis added]

Our review of this summary judgment is limited to deciding what interpretation to give the provision that "the action taken by the Board of Trustees shall be final." The College urges that "final" means not subject to judicial redetermination; in other words, this language was in effect an agreement for common law arbitration which precludes litigation of the issues decided in arbitration by the college trustees. Dr. Manes contends, on the other hand, that "final" means only that the trustee's action was the last step in the College's internal grievance procedure before he could resort to the courts but that it did not otherwise affect his right to judicial review. We hold that the contract does not provide for common law arbitration but that whether grounds existed for termination is subject to judicial redetermination. Thus, summary judgment was improperly granted.

Summary judgment is proper only where the record establishes a right thereto as a matter of law. Gonzales County Sav. and Loan Ass'n. v. Freeman, 534 S.W.2d 903, 905 (Tex. 1976); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Further, the movant must demonstrate that no genuine issue of material fact stands in the way of judgment for movant. Torres v Western Casualty & Surety Co., 457 S.W.2d 50, 52 (Tex. 1970). The movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. Summary judgments must stand on their own merits. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). Because the College sought summary judgment on the ground that the contract provided for common law arbitration, summary judgment was proper only if the College established as a matter of law that the contract provided for common law arbitration and that the dispute had been arbitrated according to the contract.

Arbitration is generally favored by the courts and every reasonable presumption will be indulged to uphold arbitration proceedings. Carpenter v. North River Insurance Company, 436 S.W.2d 549, 553 (Tex. Civ. App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694, 700 (Tex. Civ. App.--Tyler 1965, no writ). The agreement must, however, satisfy the common law requirements for arbitration. See L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348, 352 (Tex. 1977); Murray v. U.S. Fidelity & Guaranty Co., 460 S.W.2d 212, 214 (Tex. Civ. App.--Dallas 1970, writ ref'd n.r.e.). The arbitration agreement need not be in any particular form, but no party is under a duty to arbitrate unless by clear language he has so agreed, and it must clearly appear that the intention of the parties was to submit their dispute to the arbitrators and to be bound by that decision. 6 C.J.S. Arbitration Sec. 14 (1972).

"Arbitration" is generally a contractual proceeding by which the parties to a controversy, in order to obtain a speedy and inexpensive final disposition of the disputed matter, select arbitrators or judges of their own choice, and by consent, submit the controversy to these arbitrators for determination. Alderman v. Alderman, 296 S.W.2d 312, 315 (Tex. Civ. App.--San Antonio 1956, writ ref'd.); see 6 C.J.S. Arbitration Sec. 2 (1975); 5 Am. Jur. 2d Arbitration and Award Sec. 1 (1962); 6 Tex. Jur. 2d Arbitration and Award Sec. 1 (1959). The essence of arbitration is the submission of the controversy to a third party. See Parrott v. Brotherhood of Railroad Trainmen, 85 S.W.2d 306, 308 (Tex. Civ. App.--Texarkana 1935, writ ref'd) (contractual rights cannot be taken away by any system of arbitration whereby one of the parties does the arbitrating); 16 Williston, Contracts Sec. 1918 (3d. ed. 1976) (arbitration is consensual means for settlement of disputes by reference to a private party); 6 C.J.S. Arbitration Sec. 58 (1972) (arbitrator is a judge of parties' own choosing); 5 Am. Jur. 2d Sec. 84 (1962) (arbitrator is a private, extraordinary judge chosen by the parties).

Dr. Manes' employment contract provided for a hearing before the College's Board of Trustees. If the Board of Trustees was considered to be an arbitrator, the effect would be to allow one of the parties to act as judge in its own case. Such a result is totally inconsistent with the theory of arbitration. The contract plainly establishes only a procedure for internal administrative remedies and cannot be considered as an agreement to arbitrate. Summary judgment was thus improper because the College failed to establish as a matter of law that the contract provided for common law arbitration.

Additionally neither party pleaded ambiguity of the contract in the trial court. If a contract is so worded that it can be given a definite and certain legal meaning, it is not ambiguous. When a contract is susceptible to a legal meaning, construction of the written instrument is one of law for the court. Loe v. Murphy, 611 S.W.2d 449, 452 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.); Gibson v. Bentley, 605 S.W.2d 337, 339 (Tex. Civ. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). Since allowing the College to act as an arbitrator in its own dispute is inconsistent with the theory of arbitration, the College's contention that the contract provides for common law arbitration constitutes an unreasonable reading of the contract. The only possible reading of the contract is that it establishes a procedure for administrative review of disputes between the College and its employees. This allows for possible resolution of disputes without the necessity of judicial intervention, but it does not preclude judicial intervention. Dr. Manes was required to exhaust these administrative remedies before he could seek a judicial determination of his complaint, and he did so. Because the contract provided only for a procedure for administrative review and the College failed to establish as a matter of law that the parties entered into common law arbitration, the summary judgment must be reversed and the cause remanded.

SPARLING, Justice, dissenting.

I cannot agree that a reasonable construction of the employment contract contemplates a judicial determination of the merits of appellant's termination. Accordingly, I dissent.

This case does not concern the judicial review of a public institution as a matter of administrative law, but rather the review of the action of a private institution as a matter of contract law. Academic freedom does not inherently require a more liberal construction of rights under a teacher's contract of employment, than the construction of contractual rights of any other wage earner. "Tenure" is a status defined by contract, vesting only those rights provided by contract and no right to arbitration exists without language so specifying.

Majority implies that the summary judgment was granted on the ground that the contract provided for common law arbitration, yet "arbitration," by word or inference, is no where mentioned by the court in the judgment. ¹ Majority presumes that the summary judgment must have been based upon a finding of arbitration because the College's Motion for Summary Judgment, in one part, referred to the action of the Executive Committee of the Board of Trustees as "common law arbitration." The word "arbitration" was used when the College urged the court to construe the word "final" in the employment contract as precluding a judicial determination of insubordination. I would hold that the College properly presented the issue of the construction of the employment contract to the court by Motion for Summary Judgment, although it was improperly labelled as "arbitration." In Albritton v. Henry S. Miller Co., 608 S.W.2d 693, 695 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.), this court held that Rule 166-A(c) allows issues to be "expressly presented" by all summary judgment evidence presented to and considered by the court, even if the Motion fails to specifically set forth the issue. In Stark v. Morgan, 602 S.W.2d 298 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.) this court held that summary judgment may be granted on any ground set forth in the motion. See also Houchins v. Scheltz, 590 S.W.2d 745, 750 (Tex. Civ. App.--Houston [14th Dist.] 1979, no writ). Therefore, if the issue is properly...